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Culture Documents
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elite culture of the U.S. Supreme Court, referring to foreign law to determine
the scope of U.S. constitutional rights is commonplace. 5
The other culture that this Article will discuss is the popular culture of the
vast majority of American citizens, as shaped by those citizens political
leaders and opinion elites. In this second culture, there is a decidedly different
view of the relationship between the United States and foreign legal systems.
American popular culture overwhelmingly rejects the idea that the United
States has a lot to learn from foreign legal systems, including even those of
countries to which we are closely related like the United Kingdom and
Canada. 6 Most Americans think instead that the United States is an
exceptional country that differs sharply from the rest of the world and that
must therefore have its own laws and Constitution. I will show that this idea
that America is an exceptional nation, with an exceptional people and an
exceptional role to play in the world is deeply rooted in American history.
American mass culture is thus sharply at odds with the Supreme Courts elite
lawyerly culture on the issue of whether U.S. courts have a lot to learn from
foreign law.
Moreover, I will show that not only do Americans think of the United States
as an exceptional country, but it has actually become an exceptional country as
it has attracted immigrants with a unique constellation of ideological beliefs.
Americans are more individualistic, more religious, more patriotic, more
egalitarian, and more hostile to unions and Marxism than are the people of any
other advanced democracy. This positive account of the ways in which the
United States truly is exceptional will call into question the practicality and
wisdom of our Supreme Court imposing foreign ideas about law on us. As
Justice Scalia said about efforts to import British law into U.S. constitutional
law, [i]t is beyond comprehension why we should look, for that purpose, to a
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country that has developed, in the centuries since the Revolutionary War and
with increasing speed since the United Kingdoms recent submission to the
jurisprudence of European courts dominated by continental jurists a legal,
political, and social culture quite different from our own. 7
This tale of two cultures an elite lawyerly culture that favors things foreign
and a popular culture that dislikes them poses a special challenge for law
professors like Tom Merrill and David Strauss, who believe that the Supreme
Court ought to be a conventionalist, Burkean common law court that interprets
the Constitution according to current day consensus. 8 If the Court follows
either its own precedent, or any of the many other hints in its caselaw, it simply
must consider foreign law in deciding U.S. constitutional law cases. The
caselaw tradition is much too deeply rooted for a common law Burkean
follower of precedent to ignore. On the other hand, following precedent and
borrowing foreign law to decide cases on issues such as the constitutionality of
sodomy laws or the execution of juvenile offenders goes against the wishes of
the American people. American exceptionalists who believe that this country
is, as Ronald Reagan said, a (Biblical) shining city on a hill will naturally rebel
at the idea that their Constitutions meaning should be shaped by the laws of
secular France or Germany. What is a conventionalist, Burkean common law
Justice to do?
I will argue that in situations like this one, where the elite lawyerly culture
of the Supreme Court conflicts with the mass culture of most Americans as
expressed over four hundred years, it is the mass culture that ought to govern
the Court, assuming that the Court should look to anything beyond the text and
original history of the Constitution. 9 As I see it, the whole point of Professor
Merrills conventionalism is to prevent the Court from acting as an engine of
social change by imposing novel views and ideas on the American people.
Professor Merrill has said that he believes such judicially driven social change
raises concerns about the rule of law, judicial activism, and democratic
theory. 10 Therefore, even though the caselaw roots of judicial citation of
foreign law are deep, I think a conventionalist ought to reject Supreme Court
citation of foreign law on the grounds that: (1) the American people, whose
Constitution is at issue, think America is an exceptional place, which by
definition should have exceptional laws; and (2) America has in fact become
an exceptional place to which it would not be appropriate to apply European or
Canadian laws.
Roper v. Simmons, 543 U.S. 551, 626-27 (2005) (Scalia, J., dissenting).
See discussion infra Part V.
9 I am a textualist and an originalist, but I think it is useful to engage in conversation with
Burkean traditionalists about whether they should follow popular or elite lawyerly
traditions.
10 See Thomas W. Merrill, Bork v. Burke, 19 HARV. J.L. & PUB. POLY 509, 515-23
(1996).
8
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This conundrum for conventionalists about whether the Court should follow
the implications of its caselaw and doctrine or whether it should follow the
traditions of the American people plays out in many other contexts as well. If
the Supreme Courts right to privacy doctrine was applied in a mechanical
common law way, there is a good chance that laws against gay marriage,
polygamy, or prostitution would fall even though such laws are deeply rooted
in American tradition. I mean to suggest by writing this piece that it is a
mistake for the Court to take its doctrine or caselaw too seriously when doing
so puts it in tension with the longstanding beliefs and traditions of the
American people. If we are going to be Burkeans and apply tradition in
American constitutional law, the tradition that ought to count is that of the
American people and not the lawyerly, doctrinal tradition of the Justices of the
Supreme Court.
Part I of this Article begins by sketching out the Courts two centuries long
practice of relying on foreign law to decide U.S. constitutional cases. I will
show that this practice is much more deeply rooted in the Courts caselaw than
even Roe v. Wade 11 or the caselaw of the New Deal. Part II will then turn to
the American ideological tradition of proclaiming and believing that the United
States is an exceptional country, different from every other country in the
world. I will trace this popular tradition of American exceptionalism from its
European and Puritan roots to the present day, relying on the prior scholarship
of Deborah L. Madsen, 12 Jack P. Greene, 13 Anders Stephanson, 14 James A.
Morone, 15 Jon Meacham, 16 Michael and Jana Novak, 17 Sacvan Bercovitch, 18
and Ernest Lee Tuveson. 19 Part III will briefly discuss some of the many ways
in which the United States is in fact an exceptional country, as argued by
Seymour Martin Lipset, 20 John Micklethwait and Adrian Wooldridge, 21
11
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See generally GRAHAM K. WILSON, ONLY IN AMERICA?: THE POLITICS OF THE UNITED
STATES IN COMPARATIVE PERSPECTIVE (1998).
23 See generally CHARLES LOCKHART, THE ROOTS OF AMERICAN EXCEPTIONALISM (2003).
24 See generally ANDREW KOHUT & BRUCE STOKES, AMERICA AGAINST THE WORLD:
HOW WE ARE DIFFERENT AND WHY WE ARE DISLIKED (2006).
25 See generally SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988).
26 See generally MICHAEL KAMMEN, A MACHINE THAT WOULD GO OF ITSELF: THE
CONSTITUTION IN AMERICAN CULTURE (1986).
27 The only substantial book I was able to find that has already applied American
exceptionalism to law is AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS (Michael
Ignatieff ed., 2005) [hereinafter AMERICAN EXCEPTIONALISM]. This book is a collection of
short chapters on specific legal issues and American exceptionalism; it does not address the
subject in the comprehensive way I seek to do here.
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The Supreme Courts practice of citing and relying on foreign law goes back
two centuries and is far more deeply rooted in the Courts caselaw than is the
fabled and much discussed right to privacy, 28 or even the New Deal. 29 If
precedent and caselaw count for anything in constitutional law, then the
legitimacy of Supreme Court citation of foreign law is a long settled issue. I
have recently summarized the Supreme Courts practice of citing foreign law
in a lengthy law review article co-written with Stephanie Dotson Zimdahl in
the William and Mary Law Review. 30 Anyone who wants an in-depth
discussion of the caselaw will find it in that 166-page article. For everyone
elses benefit, I will provide a quick summary of our findings here. 31
The Court has cited foreign law since the start of the Marshall Court era, but
the frequency of citation has picked up enormously in the modern post-1940
period. 32 Moreover, until Trop v. Dulles, decided in 1958, the Court had only
cited foreign law in the process of upholding federal or state laws. It was only
starting with Trop that the Court began to cite foreign law as support for
striking down laws. 33 I will quickly summarize below the four main fifty-year
periods of American history between 1804 and 2005 to show the Courts
practice in each period with respect to citing foreign law. Like a good
common law conventionalist, I will begin with the most recent period of cases,
on the assumption that following current consensus is all important, and I will
then gradually work my way back through time to the distant era of the
Founding.
Between 1940 and the present, the Supreme Court considered and relied on
foreign law in at least seventeen cases. Seven of these cases were criminal law
and procedure cases: Trop v. Dulles, 34 Miranda v. Arizona, 35 Coker v.
28
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36
433 U.S. 584, 596 n.10 (1977) (noting international consensus against the use of the
death penalty for rape).
37 458 U.S. 782, 796 n.22 (1982) (noting foreign views regarding the death penalty in
felony murder cases).
38 487 U.S. 815, 830-31 (1988) (The conclusion that it would offend civilized standards
of decency to execute a person who was less than 16 years old at the time of his or her
offense is consistent with the views expressed . . . by other nations that share our AngloAmerican heritage, and by the leading members of the Western European community.).
39 536 U.S. 304, 311, 316 n.21 (2002) (concluding that the death penalty could not be
levied against the mentally handicapped after noting that within the world community, the
imposition of the death penalty for crimes committed by mentally retarded offenders is
overwhelmingly disapproved).
40 543 U.S. 551, 578-79 (2005) (finding the death penalty for juvenile offenders
unconstitutional after referring to an emerging international consensus that the execution of
juvenile offenders constitutes disproportionate punishment).
41 410 U.S. 113, 136-38 (1973) (referring to English legislative and judicial
developments to help support the proposition that statutory criminalization of abortion was
largely a nineteenth and twentieth century phenomenon).
42 521 U.S. 702, 718 n.16 (1997) (noting actions by courts and legislatures in Canada,
England, New Zealand, and Australia during the 1990s to prohibit assisted suicide).
43 539 U.S. 558, 573 (2003) (discussing recent decisions in Europe striking down laws
prohibiting homosexual sodomy).
44 381 U.S. 479, 500 (1965). Justice Harlan adopted his concurrence in Griswold from
his dissent in Poe v. Ullman, 367 U.S. 497, 541 (1961), which rooted due process protection
in the Magna Carta.
45 342 U.S. 165, 169 (1952) (suggesting that American criminal procedure rules should
be rooted in the notions of justice of English-speaking peoples).
46 361 U.S. 147, 166 (1959) (Frankfurter, J., concurring) (discussing debates in the
House of Commons over obscenity provisions).
47 332 U.S. 46, 63 (1947) (Frankfurter, J., concurring) (referencing English methods for
ascertaining facts during the eighteenth century in passing as a method for interpreting the
Due Process Clause of the Fourteenth Amendment).
48 338 U.S. 25, 29 (1949) (When we find that in fact most of the English-speaking
world does not regard as vital to such protection the exclusion of evidence thus [unlawfully]
obtained, we must hesitate to treat this remedy as an essential ingredient of the [Fourth
Amendment] right.).
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relied on foreign law in his dissent in Printz v. United States 49 and in Knight v.
Florida. 50
During the second fifty-year period, between 1890 and 1940, at least seven
cases relied on foreign law: Block v. Hirsh, 51 the Selective Draft Law Cases,52
OMalley v. Woodrough, 53 United States v. Perkins, 54 Palko v. Connecticut,55
Muller v. Oregon, 56 and The Paquete Habana. 57 During the third fifty-year
period, from 1840 to 1890, four famous opinions relied on foreign law: Dred
Scott v. Sandford, 58 Reynolds v. United States, 59 Hurtado v. California, 60 and
two of the three Legal Tender Cases. 61 Finally, from 1804 to 1840, seven
majority opinions and one dissent relied on foreign law: Murray v. Schooner
Charming Betsy, 62 Rose v. Himely, 63 Brown v. United States, 64 The
49
521 U.S. 898, 976 (1997) (Breyer, J., dissenting) (mentioning European federalism
balances).
50 528 U.S. 459, 462-63 (1999) (Breyer, J., dissenting from denial of certiorari)
(analyzing Jamaican interpretation of British laws addressing the length of time after
sentencing within which a prisoner must be executed).
51 256 U.S. 135, 140 (1921) (listing European nations with rent control statutes and
holding rent control statutes constitutional).
52 245 U.S. 366, 378-79 (1918) (surveying the list of countries requiring military service
in times of need and specifically discussing such rules in England).
53 307 U.S. 277, 281 n.8 (1939) (noting a decision by the Supreme Court of South Africa
interpreting language taken from a clause of Article III, Section 1 of the U.S. Constitution).
54 163 U.S. 625, 627 (1896) (discussing British taxation statutes during the reigns of
Henry II and Henry VIII).
55 302 U.S. 319, 326 n.3 (1937) (noting that there is no immunity from compulsory selfincrimination in many Continental European countries, and thus such a right is not implicit
in the concept of ordered liberty).
56 208 U.S. 412, 419 n.1 (1908) (noting foreign statutes regarding gender-based worker
regulation).
57 175 U.S. 677, 700 (1900) (International law is part of our law . . . .).
58 60 U.S. (19 How.) 393 (1857). Five opinions in the decision, three concurring and two
dissenting, reference foreign law.
59 98 U.S. 145, 158-59 (1878) (contrasting the development of British and U.S. caselaw
regarding testimony of absent witnesses).
60 110 U.S. 516, 521-26 (1884) (interpreting due process in light of the language and
interpretations given to parts of the Magna Carta).
61 Juilliard v. Greenman, 110 U.S. 421, 447 (1884) (pointing to the European belief that
the sovereign can issue paper currency for private debts); Knox v. Lee, 79 U.S. (12 Wall.)
457, 568-69 (1870) (arguing that European nations, notably England and France, authorized
the use of paper currency to pay wartime debt).
62 6 U.S. (2 Cranch) 64, 118 (1804) (stating that an Act of Congress should not be
construed to violate the law of nations if any other possible construction remains).
63 8 U.S. (4 Cranch) 241, 270-72 (1808) (analyzing British precedent on jurisdiction in
foreign nations).
64 12 U.S. (8 Cranch) 110, 124-25 (1814) (detailing views of famous foreign jurists on
war powers).
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For almost four hundred years, Americans have defined the United States as
an exceptional nation with an exceptional mission in the world. 71 This self65 23 U.S. (10 Wheat.) 66, 115-16 (1825) (analyzing international consensus for the slave
trade).
66 18 U.S. (5 Wheat.) 153, 160-80 (1820) (citing various European legal sources and
commentaries in discussing what constitutes a violation of the law of nations).
67 38 U.S. (13 Pet.) 331, 337-38 (1839) (looking to European maritime law and Roman
jurisprudence concerning general averages).
68 12 U.S. (8 Cranch) 155, 162 (1814) (considering the law of nations and the laws of
England before the American Revolution).
69 12 U.S. (8 Cranch) at 124-25 (Story, J., dissenting) (detailing the work of famous
foreign jurists but reaching a different interpretation than the majority in the case).
70 The Antelope, 23 U.S. at 114; Brown v. United States, 12 U.S. (8 Cranch) 110, 121
(1814); Rose v. Himely, 8 U.S. (4 Cranch) 241, 268 (1808); Murray v. Schooner Charming
Betsy, 6 U.S. (2 Cranch) 64, 115 (1804).
71 Daniel Bell observes that [w]hat is striking is that each nation, when it begins to
gather its energies military, political, or economic to make a decisive entry on to the
stage of history, defines itself with respect to its uniqueness and exceptionalism. Daniel
Bell, The Hegelian Secret: Civil Society and American Exceptionalism, in IS AMERICA
DIFFERENT? 46, 47 (Byron E. Shafer ed., 1991). Bell agrees that [i]n the United States
there has been the belief, so strong since the beginning of the Republic, in an American
exceptionalism. From the start there had been the self-consciousness of a destiny that
marked this country as being different from others . . . . Id. at 48. Bell adds that
uniqueness is not exceptionalism. All nations are to some extent unique. But the
idea of exceptionalism, as it has been used to describe American history and
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Jack P. Greene, a leading colonial historian, makes the brilliant point that
the intellectual construction of America as an exceptional place began in
Europe, and thus American exceptionalism is originally a European idea. 74
Greene notes that
[t]hroughout the Middle Ages, Europeans had posited the existence of a
place for a time to the east, but mostly to the west of Europe without
the corruptions and disadvantages of the Old World. The discovery of
America merely intensified this nostalgia for the Golden Age and the
Lost Paradise and actually aroused new hope for their discovery
somewhere on the western edge of the Atlantic. 75
Twenty-four years after Columbus discovered America in 1492, Sir Thomas
More wrote his enormously influential tract Utopia about a place that he
located in the Atlantic. 76 Through Jonathan Swift and beyond, utopian
writers continued to identify the dream of a perfect society with America and
to locate their fairylands, their New Atlantis, their City of the Sun in some
place distant from Europe and in the vicinity of America. 77 Europeans came
to see America as opening vast new possibilities for themselves, as well as
institutions, assumes not only that the United States has been unlike other nations, but
that it is exceptional in the sense of being exemplary (a city upon a hill), or a beacon
among nations . . . .
Id. at 50-51.
72 As Seymour Martin Lipset observes, In Europe, nationality is related to community,
and thus one cannot become un-English or un-Swedish. Being an American, however, is an
ideological commitment. It is not a matter of birth. Those who reject American values are
un-American. LIPSET, supra note 20, at 31.
73 As Deborah L. Madsen notes, American exceptionalism permeates every period of
American history and is the single most powerful agent in a series of arguments that have
been fought down the centuries concerning the identity of America and Americans.
MADSEN, supra note 12, at 1. Another scholar, Jack P. Greene, says that there is an
extraordinarily large body of contemporary testimony from the sixteenth through the
eighteenth century and beyond that did indeed see America as a special, and in many ways
even an exceptional place. GREENE, supra note 13, at 6.
74 GREENE, supra note 13, at 8-24.
75 Id. at 25-26.
76 Id. at 26.
77 Id. at 28.
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78
79
80
81
82
83
84
85
Id. at 30.
EDMUND S. MORGAN, ROGER WILLIAMS: THE CHURCH AND THE STATE 6-7 (1967).
Id. at 8.
Id. at 9.
STEPHANSON, supra note 14, at 3-4.
See BERCOVITCH, supra note 18, at 39.
See MORGAN, supra note 79, at 19.
BERCOVITCH, supra note 18, at 38.
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vision also animated John Winthrop, the leader of the Massachusetts Bay
colonists, who in his sermon A Modell of Christian Charity describ[ed] the
special destiny awaiting the community of saints as they voyaged to
Massachusetts 92 and uttered the famous quote that appears at the beginning of
this Article about Massachusetts becoming a city on a hill. Winthrop did not
expect moral failure to overtake his colony and predicted that [w]ee shall
finde that the God of Israell is among us, when ten of us shall be able to resist a
thousand of our enemies; when hee shall make us a prayse and glory. 93 After
the colony was planted, Winthrop heard that some new immigrants were being
diverted from New England to the West Indies by British ministers, he wrote
the responsible minister in Westminster to show[] his lordship, how evident it
was, that God had chosen this country to plant his people in, and therefore how
displeasing it would be to the Lord, and dangerous to himself, to hinder this
work. 94 America was thus going to be a New Jerusalem a Godly light to all
the nations of the world, and a reproach to the corrupt old nations and churches
of Europe, which were destined to meet the same fate as Sodom and Gomorrah
in the views of Bradford and Winthrop.
Bradford and Winthrop were obviously inspired by several Biblical
passages. Consider the second book of Samuel, which reads [a]nd I will
provide a place for my people Israel and will plant them so that they can have a
home of their own and no longer be disturbed. 95 This passage was important
to the Puritans because it showed Gods commitment to planting Israel in its
own land and suggested that God might plant the Puritans in a land all of their
own as well. 96 Even more important is a passage from Matthew, in which
Jesus during his Sermon on the Mount exhorts his followers to do what
Bradford and Winthrop prescribe, which is to try to be a light to all peoples
quite literally a shining city on a hill:
You are the light of the world. A city on a hill cannot be hidden.
Neither do people light a lamp and put it under a bowl. Instead they put it
on its stand, and it gives light to everyone in the house. In the same way,
let your light shine before men, that they may see your good deeds and
praise your Father in heaven. 97
Winthrop and Bradford were trying to do quite literally what Jesus had
commanded. Finally, the book of Revelation describes the New Jerusalem
during the end times as being a shining city on a hill, showing that the creation
92
Id. at 18.
Winthrop, supra note 1, at 68.
94 See MADSEN, supra note 12, at 19.
95 2 Samuel 7:10 (New International).
96 BERCOVITCH, supra note 18, at 8-9 (explaining John Cottons use of this passage from
the second book of Samuel to convey the idea that America was the new promised land,
reserved by God for His new chosen people).
97 Matthew 5:14-16 (New International).
93
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of such a city was what the elect of God ought to try to do. 98 As we shall see
below, the description in Revelation of the New Jerusalem bears striking
similarities to the shining city on a hill described by President Ronald
Reagan. 99
The Puritans saw the hand of God in all good and bad events around
them. 100 When smallpox devastated the surrounding Indian population in the
1630s, Stephanson observes, John Winthrop could thus class it as a divine
favor. God hath consumed the natives with a miraculous plagey, went the
crisp verdict. 101 In describing Massachusetts, Morgan concludes that
[t]he mantle of Israel, lost by Englands Stuart kings, had descended on
Massachusetts. The colony was not a theocracy in the usual sense of a
rule by priests. But in the sense of a rule by God, through agents who
steadily searched His Word and sought to apply it to every situation,
Massachusetts aspired to be a theocracy. 102
Similarly, Deborah Madsen shows that the Puritans belief that they were
forming a Godly nation led them to be especially vigilant in punishing any
behavior that called into doubt the proposition that they were Gods elect and
Puritan vigilance in punishing suspected
predestined for salvation. 103
witchcraft, 104 the practice of Quakerism, 105 and other sins should be
understood in that light. 106
Many Puritan leaders became concerned that the Godly purpose of the
emigration would come to be forgotten as a second and third generation of
Americans succeeded the initial religiously motivated emigrants. 107 A synod
of clergymen in 1679 condemned the following Puritan sins:
pride, strange apparel, and ornaments . . . sleeping in church; spoiled
children . . . sinful heats and hatreds; drinking, debauchery, heinous
breaches of the Seventh Commandment (adultery), and fornication; false
hair, naked necks, naked arms, and . . . naked breasts; dancing, gaming,
98 See Revelation 21:1-20 (describing the city of New Jerusalem descending from the
heavens).
99 See infra notes 241-42 and accompanying text.
100 See MORGAN, supra note 79, at 82.
101 STEPHANSON, supra note 14, at 11.
102 MORGAN, supra note 79, at 84.
103 See MADSEN, supra note 12, at 33-34.
104 See MORONE, supra note 15, at 83 (New England accused at least 123 witches and
executed 16 between 1647 and 1691 before the panic in Salem Village. But nothing in
New England ever approached the scope of the Salem Village trials 144 accused, 19
hanged, 4 dead in prison, 1 pressed to death with stones.).
105 See id. at 71 (observing that Puritans executed six Quakers, four of whom were hung
and two of whom were whipped to death).
106 See MADSEN, supra note 12, at 33-34.
107 See id.
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109
110
111
112
113
114
115
116
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the apocalyptic version of the new world mission sprang up with each
religious revival through the Puritan century and beyond: from John
Cotton (in the first generation) to Increase Mather (the second) to Cotton
Mather (third) to Jonathan Edwards and, with the Great Awakening,
across the colonies and into American history. 117
Morone adds that [t]he Great Awakening marks the end of Puritan New
England and the first stirring of Puritan America. 118 Bercovitch observes that
Jonathan Edwards, a preacher and theologian, inherited the concept of a new
chosen people, and enlarged its constituency from saintly New England
theocrats to newborn American saints. 119 According to Bercovitch, [t]he
Edwardsian concerts of prayer sought to awaken all prospective American
saints, north and south, to the state of their souls, the shortcomings of their
society, and the destiny of their New World Canaan. 120 New Israel, New
World, new heavens and new earth: it was the common vision of the time, and
it derived, unmistakably, from Puritan New England. 121
While most founders of New England shared this common vision, at least
one Roger Williams, the founder of Rhode Island disagreed with the
Puritan orthodoxy of Massachusetts and Connecticut. As Morgan powerfully
explains:
To Williams the holy covenant that Winthrop claimed for
Massachusetts was an unholy delusion. Winthrop and his fellow
magistrates, in trying to reproduce the land of Canaan in New England,
were ignoring the whole significance of Christs incarnation. Since the
birth of Christ, God favored no people with a covenant, and so it was
wrong for any state to set up a civill and temporall Israel, to bound out
new Earthly holy Lands of Canaan by exercising authority over religion
in Gods name. There was nothing special in Gods mind about England
or New England or any other people or place in the world. 122
Roger Williams aside, however, there can be no question that the Founders of
New England believed in a particularly ardent and religiously based form of
American exceptionalism. As Alexis de Tocqueville was to say, [t]he
civilization of New England has been like those fires lit in the hills that, after
having spread heat around them, still tinge the furthest reaches of the horizon
with their light. 123 Bercovitch adds that the New England orthodoxy
succeeded, precisely through their commitment to the Puritan ideal, in
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transmitting a myth that remained central to the culture long after the theocracy
had faded and New England itself had lost its national influence. 124 The
descendants of the Puritans were forced to enlarge their ideal of New Israel
into a vision that was so broad in its implications, and so specifically American
in its application, that it could survive the failure of theocracy. 125
B.
Ultimately, the religious fervor cooled, and the nature of the exceptionalist
argument changed, but the idea of America as a special place with a special
people called to a special mission was never to go away. Succeeding
generations expressed their exceptionalist vision by recounting the legend of
New Englands founding and viewed the entire continent as destined to fulfill a
great role in history. 126 Critically, many second- and third-generation
Americans thought that the New World at large not just New England but
the entire continent was destined for an errand in sacred history. Like
Canaan of old, America was the child of prophecy and promise. 127
American exceptionalism began to embrace secular ideals as well as
religious ones in part as a result of the differing social structures in England
and America. One great advantage of the American colonies over England
was their lack of a class structure and social stratification. 128 As Jack Greene
notes, [w]idespread possession of landed property . . . turned the colonies into
societies in which virtually every [free] Male Inhabitant became a Freeholder,
and by consequence entitled to a share in the Government of the Province. 129
Greene quotes philosopher Edmund Burke as saying that this led to a love of
freedom, a fierce spirit of liberty, that, [Burke] posited, was the
predominating feature in the colonial character and stronger . . . probably
than in any other people of the earth. 130
The adoption of the ideals of property, equality, and happiness into
American exceptionalism is reflected in a 1754 sermon by Reverend Jonathan
Mayhew, who preached that Americans would experience divine favor and
that, being brought out of the house of bondage, they might be conducted into
124
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a good land, flowing with milk and honey; that they might there possess
property, enjoy the blessing of equal laws, and be happy. 131 As Madsen
points out, this new representation of the American mission is also echoed in
the terms of the Declaration of Independence: the possession of private
property, equality before the law, and the freedom to pursue happiness. 132
The Declaration itself is, of course, full of reference to the Deity to whom it is
in part addressed, talking of the Laws of Nature and of Natures God, saying
that men are endowed by their Creator with certain unalienable Rights,
appealing to the Supreme Judge of the world for the rectitude of our
intentions, and concluding by professing a firm reliance on the protection of
divine Providence.
Bercovitch also recognizes the non-religious aspects of American
exceptionalism that emerged during this time:
[I]n fleeing the Old World, the [Puritan] emigrants were abandoning a
bankrupt monarchical order to establish a new way of life, civic and
economic as well as religious. It was to their cause of liberty, rather than
to some Old World despot, that filial allegiance was due. . . . [W]hat the
fathers began, the sons were bound to complete. 133
As Bercovitch explains, For the Puritans, the errand carried forward the
biblical exodus; for Edwards, the revival brought to fruition the Puritan errand;
for the Whig preachers, the Revolution unveiled the meaning of exodus,
errand, and revival. 134 Describing the connection between the Puritan
founding and the Revolution, Bercovitch quotes John Adams as saying that
the motives behind the Revolution ought to be traced back for Two
Hundred Years, and sought in the history of the Country from the first
Plantations. . . . This produced, in 1760 and 1761, AN AWAKENING
and a REVIVAL of American Principles and Feelings, with an
Enthusiasm which went on increasing till in 1775 it burst out in open
violence. 135
As Bercovitch observes, Adamss use of the Great Migration as precursor to
the War of Independence is a significant testament to the secular-sacred
typology developed through the eighteenth century. 136 Bercovitch claims that
Thomas Paine made reference to the same themes with
131
Jonathan Mayhew, An Election Sermon (May 29, 1754), in THE WALL AND THE
GARDEN: SELECTED MASSACHUSETTS ELECTION SERMONS 1670-1775, at 288, 293 (A.W.
Plumstead ed., 1968), quoted in MADSEN, supra note 12, at 35.
132 MADSEN, supra note 12, at 35.
133 BERCOVITCH, supra note 18, at 123.
134 Id. at 128.
135 Id. at 130-31 (alteration in original) (quoting THE AMERICAN REVOLUTION: THE
SEARCH FOR MEANING 11-12 (Richard J. Hooker ed., 1970)).
136 Id. at 131.
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his use of biblical precedents, his emphasis on providence, and above all
the figural blueprint he presents for American exceptionalism, with due
emphasis on the landmarks of early New England christianography: a
fallen Old World (harboring Romish Antichrist), an Egyptian England (in
bondage to a hardened, sullen-tempered pharaoh), and a New Canaan
charged by the design of Heaven with the cause of all mankind. 137
The writings of Benjamin Franklin, a son of Boston, also relied on the idea
of American exceptionalism and reflected the shift of exceptionalism toward
more secular ideals. 138 Madsen notes that Franklins Autobiography redefines
exceptionalism, away from its religious origins as an errand into the
wilderness where a grand and purified church would be established,
peopled by the visible saints chosen by God, and awaiting the glorious
end of time. Franklin represents the American errand as the creation of a
secular state that is purified of the corruption of European politics and a
social structure based on inherited title. It is the secular America that will
be a model of democratic government and the envy of all the nations of
the earth. 139
Madsen goes on to observe that
Franklin powerfully redefined the Puritan mission: recasting the terms of
success, where material prosperity assumed a prominence it had not had
before, where the conditions of life for Americans were defined less in
spiritual terms than earlier, where the collective salvation of the
community was transformed into a form of government that would
protect the rights of all citizens. What remained was the perception that
America would continue to be judged by the other nations of the world to
whom America would remain a model, a guide, a measure. And also a
guardian of the inalienable rights of man, so recently enshrined in the
Constitution . . . . 140
Franklins recasting of the Puritan mission in secular tones led the great Max
Weber to point to Franklin as proof of the relationship between the Protestant
ethic and the spirit of capitalism. 141
Daniel Bell offers a similar account of the Founding, observing that there
were [t]hose like Jefferson, who were deists, [and] saw America as Gods
design worked out in a virgin, paradisaical land. But others, such as Franklin,
more worldly and sceptical, saw none the less the possibility of the United
137
Id. at 121.
See MADSEN, supra note 12, at 36 (Benjamin Franklin also used the vocabulary of
exceptionalism to represent his particular vision of the world and the infant American nation
within it.).
139 Id. at 36-37.
140 Id. at 37-38.
141 See MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM passim
(Talcott Parsons trans., Charles Scribners Sons 1930) (1904-1905).
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States being exemplary, and thus a hope for the future. 142 There existed, in
Bells view, the belief, intertwined with the philosophical views of the
founding fathers, that ours would be the providential nation, the redeemer
nation, the one whose dedication to liberty and individual worth would be the
foundation of a new moral society. 143 Building on this idea, Bell argues that
behind the social contract of the U.S. Constitution
lay a distinctive political culture. In the early years of the countrys
formation, there was a self-consciousness about being the first new
nation: not a new quasi-religious utopia as proclaimed in the French
Revolution, but of going back to the origins of government and founding
a new, free world; thus the expression on the Great Seal of the United
States: Novus Ordo Seclorum, a new order of the ages. 144
The political order called into being by the Revolution would thus be an
example to all nations of how to do things it would be, in John Winthrops
words, a city upon a hill.
Despite the shift toward a more secular American exceptionalism, its
religious underpinnings remained. Jon Meacham notes that Franklin and
Jefferson played with the idea of America as a New Israel. 145 Both Franklin
and Jefferson envisioned that the Great Seal of the United States would contain
a Biblical scene, portraying the deliverance of the Israelites from their bondage
in Egypt. 146 Meacham observes that
[t]he reverse side of the final seal (it is the image to the left on the back of
the dollar bill) depicts the Eye of Providence above an unfinished
pyramid with the words of the second motto: Annuit Coeptis God (or
Providence) has favored our undertakings. 147
Obviously, the pyramid, with the eye of God above it, was meant to call to
mind Gods deliverance of the Israelites from their bondage in Egypt, as
Franklin and Jefferson originally proposed. 148 Religious symbolism and the
Puritan idea of the United States as a New Israel thus directly affected key
members of the Continental Congress that declared American independence.
The Framers discussions of the drafting and ratification of the Constitution
in 1787 also reflected religious exceptionalist influence. James Madison,
writing in The Federalist, said of the Constitution, [i]t is impossible for the
man of pious reflection not to perceive in it a finger of that Almighty hand
142
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which has so frequently and signally extended to our relief in the critical stages
Benjamin Franklin argued at the Philadelphia
of the revolution. 149
Convention that American failure meant that we would be a reproach and a
byword down to future ages. 150 Is it not striking that this is nearly identical to
the language that John Winthrop used to describe the consequences of failure
in A Modell of Christian Charity? 151 John Adams made a similar point in his
defense of the Constitution:
The people in America have now the best opportunity, and the greatest
trust, in their hands, that Providence ever committed to so small a
number, since the transgression of the first pair: if they betray their trust,
their guilt will merit even greater punishment than other nations have
suffered, and the indignation of heaven. 152
As Bercovitch argues, [t]he motive of these Federalist Jeremiahs is
transparent in the momentous choice they posed: on one side, apocalyptic
disaster; on the other side, millennial glory earned through a process of taming,
binding, curbing, restraint. 153
George Washington shared the view that God played a critical role in the
founding and that the American cause was divinely favored. In their book
Washingtons God, Michael and Jana Novak demonstrate that contrary to
popular belief, Washington was not a Deist, but rather was a committed
Christian who firmly believed that the hand of Divine Providence had guided
him and the American experiment at every step during the Revolutionary War
and the framing of the Constitution. 154 Around 1789, Washington wrote to the
Hebrew Congregation of Savannah:
May the same wonder-working Deity, who long since delivered the
Hebrews from their Egyptian oppressors, [and] whose providential
agency has lately been conspicuous, in establishing these United
149
THE FEDERALIST NO. 37, at 173 (James Madison) (Terence Ball ed., 2003).
See MEACHAM, supra note 16, at 89.
151 See Winthrop, supra note 1, at 68.
152 JOHN ADAMS, 1 A DEFENCE OF THE CONSTITUTIONS OF GOVERNMENT OF THE UNITED
STATES OF AMERICA, at x (photo. reprint 1979) (1797).
153 BERCOVITCH, supra note 18, at 135-36. Madison, Franklin, and Adams were not the
only ones to describe the influence of God in the framing of the Constitution. According to
Meacham, Benjamin Rush believed that the hand of God was employed in this work, as
that God had divided the Red Sea to give a passage to the children of Israel or had
delivered the ten commandments on Mount Sinai! MEACHAM, supra note 16, at 91. Ruth
Bloch notes that even the Anti-Federalists felt a need to respond to the millennial fervor of
the advocates of the Constitution, quoting one as deriding those who promise us such
extravagantly flattering advantages to arise from [the Constitution] as if it was accompanied
with such miraculous divine energy as divided the Red Sea, and spoke with thunder on
Mount Sinai. RUTH H. BLOCH, VISIONARY REPUBLIC: MILLENNIAL THEMES IN AMERICAN
THOUGHT, 1756-1800, at 113 (1985).
154 See generally NOVAK & NOVAK, supra note 17.
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does not prove that they did not share the American belief that ours is a special
nation, with a special people, who have a special and unique calling.
Other leaders at the time of the Founding also believed in Americas special
mission in the world. For example, Greene quotes Thomas Pownall to
illustrate that many believed the blessings that had fallen on America all
suggested that God had marked [Americans] out as a chosen people with
special obligations to their posterity and to the rest of humanity. 163 Pownall
also thought it significant that God had placed America in a New World,
separate and removed far from the regions and wretched Polities of the Old
one. 164 Greene adds that many American and European writers concurred
that America [is] an exceptional place and [that] Americans [are] an
Greene quotes Noah Webster and other
exceptional people. 165
[p]ostrevolutionary American interpreters as marveling that
after the experience of four or five thousand years, and numberless
forms of government, it should . . . happen to be reserved for America
to discover the great secret, a system of government that had eluded all
form of inquiry and had no where been suffered to prevail but in
America. 166
Greene also observes that American interpreters following the Revolution had
no doubt that [America] would continue to offer a welcoming sanctuary for
refugees from [the Old W]orld, and the depiction of the United States as an
asylum for the oppressed became one of the most conspicuous features in the
emerging image of America. 167 Anders Stephanson points out that even the
Deist Thomas Jefferson embraced the theme of biblical chosenness in his
second inaugural address when he evok[ed] the providential hand that had led
our fathers, as Israel of old, from their native land and planted them in a
country flowing with all the necessaries and comforts of life. 168
The revolutionary period ended in a dramatic way, and many Americans at
the time thought its conclusion indicated that God was at work in supporting
the new American nation. As Seymour Martin Lipset notes,
On July 4, 1826, the fiftieth anniversary of the signing of the
Declaration of Independence and the date of the deaths of its authors and
advocates, second and third Presidents John Adams and Thomas
Jefferson, Americans felt that the hand of providence was on the young
163
GREENE, supra note 13, at 160. Kohut and Stokes note that [a]ccording to the best
estimates, 80 percent of northerners were churched at the time of the American
Revolution, as were 56 percent of southerners. KOHUT & STOKES, supra note 24, at 95.
164 See GREENE, supra note 13, at 160.
165 Id. at 167.
166 Id. at 170 (alteration in original) (footnote omitted).
167 Id. at 173.
168 STEPHANSON, supra note 14, at 5.
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169
170
171
172
173
174
175
176
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177 See MADSEN, supra note 12, at 70-71. Bercovitch notes that one Melville novel
opens with a eulogy to the American Way (Out of some past Egypt we have come to this
new Canaan; and from this new Canaan we press on to some Circassia). BERCOVITCH,
supra note 18, at 28.
178 MADSEN, supra note 12, at 71.
179 See BERCOVITCH, supra note 18, at 176-77 (second and third alterations in original).
180 Daniel Webster, Fourth of July Oration (July 4, 1802), in 15 THE WRITINGS AND
SPEECHES OF DANIEL WEBSTER 513, 520 (1903).
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development of our yearly multiplying millions. 181 Madsen argues that the
concept of Manifest Destiny required the United States to fight the Mexican
War and acquire ever larger parts of the American West, because [t]he
acquisition of more land, then, was necessary to keep the American experiment
in democracy going. This was the visible or manifest destiny of the United
States . . . . 182 It appeared to mid-nineteenth century American Protestants
that just as God had made the promised land of New England available to the
Puritans, he was now signaling that the nascent United States should settle the
North American continent from sea to shining sea. 183 This ideology had mixed
consequences for those Native Americans, Mexicans, and bison that stood in
the way. Madsen notes that Senator John Dix of New York described the
process as follows:
[T]he aboriginal races, which occupy and overrun a portion of California
and New Mexico, must there, as everywhere else, give way before the
advancing wave of civilization, either to be overwhelmed by it, or to be
driven upon perpetually contracting areas, where, from a diminution of
their accustomed sources of subsistence, they must ultimately become
extinct by force of an invincible law. We see the operation of this law in
every portion of this continent. We have no power to control it, if we
would. It is the behest of Providence that idleness, and ignorance, and
barbarism, shall give way to industry, and knowledge, and civilization. 184
Anders Stephanson offers a similar account, arguing that American
nationalism in the early nineteenth century shared . . . a sense of an entirely
new kind of country, uniquely marked by social, economic, and spatial
openness. 185 He adds that the United States was viewed as a sacred-secular
project, a mission of world-historical significance in a designated continental
setting of no determinate limits. 186 Stephanson notes that OSullivan
specifically warned against the tendency to ape European models. 187
Instead, [t]he nation . . . was bound by nothing except its founding principles,
the eternal and universal principles. 188
The middle of the nineteenth century also saw important new moral and
social movements arise in America to perfect the country and save it from its
sins. Puritan New England gave rise to William Lloyd Garrison and the
powerful movement to abolish slavery. According to James Morone, Garrison
reacted to Nat Turners slave rebellion with these words: Wo to this guilty
181
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land, unless she speedily repent of her evil doings! The blood of millions . . .
cries aloud for redress! Immediate Emancipation can alone save her from the
vengeance of heaven and cancel the debt of ages. 189 The abolitionists
charged southern slaveholders with what had always been since the time of the
Puritans the four great American trespasses: violence, intoxication, laziness,
and sexual depravity. 190 Morone quotes one abolitionist who stated that
[t]he slave states are Sodoms and almost every village family is a brothel. 191
It thus appears that just as Puritan fervor was invoked against the threat of
witchcraft to their promised land, so too did the abolitionists rouse the
descendants of the Puritans against the corrupting evil of slavery. As Professor
Levinson has noted, the morally absolutist William Lloyd Garrison and his
followers famously said that the Constitution, in tolerating slavery, was a
covenant with death and agreement with hell [echoing] the prophet
Isaiah. 192 James Morone also captures the Puritan moral fervor of the
abolitionist movement in his description of a large rally in Boston on July 4,
1854, protesting the arrest of Anthony Burns, an alleged fugitive slave:
When Garrison rose, he read the Fugitive Slave Act aloud, set a copy on
fire, and, following a formula from Deuteronomy, called out, And let the
people say Amen. The crowd responded. He repeated the procedure
with papers from Burnss hearing. Then Garrison held up a copy of the
Constitution, read the pro-slavery passages, denounced this Covenant
with death and agreement with hell (quoting Isaiah), set alight the
Constitution, and prayed: So perish all compromises with Tyranny! . . .
And let all the people say, Amen. Shocked cries and hisses were
overwhelmed by the great mob of abolitionists roaring back, Amen. 193
American exceptionalism and the sin of slavery remained a major theme of
our leaders during the Civil War. Abraham Lincoln described the conflict in
strikingly exceptional terms. Jon Meacham notes that [o]n the eve of the
Civil War, Lincoln . . . prayed that he would be able to lead what he called
Gods almost chosen people. 194 Meacham adds that in Lincolns first
inaugural address, he begged the nation for forbearance, asking for
intelligence, patriotism, Christianity, and a firm reliance on Him, who has
never yet forsaken this favored land. 195 Lincoln returned to the theme of
American exceptionalism in the Gettysburg Address, in which he said that
189
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Union soldiers had died and were dying in huge numbers so that government
of the people, by the people, for the people, shall not perish from the earth.
Similarly, in his annual message to Congress a month before the Emancipation
Proclamation became effective, Lincoln described the conflict by saying that
[w]e shall nobly save, or meanly lose, the last best, hope of earth. 196 Lincoln
clearly saw the Civil War as not only a war about slavery or the preservation of
the Union, but also a war about whether the exceptional American experiment
in democracy and liberty would succeed.
James Morone notes that [i]n an era rich with moral crusades and
millennial dreams, the Civil War itself became the long-awaited American
apocalypse. 197 He goes on to claim that
Julia Ward Howe reflected the apocalyptic fervor when she reworked
passages of the millennial scriptures into The Battle Hymn of the
Republic. . . . On it went, four stanzas and a chorus from the Book of
Revelation. The Bibles most seething and delirious images summing up
the Final Holy Battle long prophesied, now come at last. 198
Anders Stephanson adds that the Norths victory in the Civil War allowed it
to regain its destinarian footing. 199 He explains that
[t]here was a great deal of apocalyptic talk about Armageddon, about the
eradication of sinful slavery as the final battle. The United States would
be born again, a mountain of holiness for the dissemination of light and
purity to all nations, as one Reverend in Philadelphia decreed. With the
end in sight, the Unionist cause could be interpreted as divine vindication.
Thus the Civil War revitalized confidence in the American mission, now
properly national and northern. 200
American exceptionalism and Puritan moral fervor burned bright during the
Civil War and helped to carry the nation through its most troubled days. In the
196
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minds of many, the Civil War became the ultimate apocalyptic crusade to
purge the land of its grievous sins. 201
The nineteenth century also saw two other great moral movements to
improve America and again make it a shining city on a hill to inspire the
world. First, the temperance movement sought and eventually obtained a
prohibition on the sale of alcohol. This American social movement was again
an attempt to purify the New Jerusalem founded by the Puritans. 202 Morone
notes that [t]he fight against the saloons would return the United States to its
appointed place up on a hill, moral exemplar for all people. 203 Consider the
following statement by the popular evangelist Billy Sunday in favor of
prohibition:
The saloon is the sum of all villainies. It is worse than war or pestilence.
It is the crime of crimes. It is the parent of crimes and the mother of sins.
It is the appalling source of misery and crime in the land. And to license
such an incarnate fiend of hell is the dirtiest, low-down, damnable
business on top of this old earth. There is nothing to be compared to it. 204
Support for Prohibition was so high that [e]very state except Rhode Island
and Connecticut [ratified] the Prohibition amendment. 205 Strikingly, once
Prohibition was enacted, [d]espite the folklore, drinking plummeted. 206 No
other major Western nation that I am aware of has ever followed the example
of the United States in conducting as radical a social experiment as Prohibition.
In addition, the nineteenth century gave rise to a powerful moral movement
for womens suffrage, which eventually succeeded in gaining women the
Nineteenth Amendment and the right to vote in all federal and state elections.
Abolitionists, advocates of temperance, and advocates of womens suffrage
were often one and the same group of people. 207 The American spirit of moral
reform associated with the womens suffrage movement is well captured by the
Seneca Falls Declaration of 1848. The Declaration is modeled on the
Declaration of Independence, declares that all men and women are created
equal, lists the grievances of women against men, and concludes by demanding
that women be given the vote. 208 There can be little doubt that nineteenth
century Americas moral crusades grew out of the moral fervor that led to the
founding of the country in the seventeenth and eighteenth centuries.
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The last half of the nineteenth century saw the emergence of another
distinctly American icon: the Statue of Liberty. The statue is Americas
answer to the Colossus of Rhodes, one of the seven wonders of the ancient
world. The statue was first proposed by a French historian in 1865, the year
the Thirteenth Amendment abolished slavery, and it was completed and
dedicated in 1886. It was originally named Liberty Enlightening the World,
a fitting name for the national icon of a country that had just abolished slavery
and that saw itself, and was seen by others, as a shining city on a hill. It is
striking that the statue holds aloft a torch or light at the harbor that is
Americas front door. It is also striking that our national icon is called a statue
of liberty and not a statue of equality or fraternity. That is, after all,
what this country stands for.
The sense that Americans are a special people, in a special land, on a special
mission is evident for all to see in the famous poem engraved on the Statue of
Libertys base, which ends with the following words:
Keep ancient lands, your storied pomp! cries she
With silent lips. Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door! 209
These words clearly evoke Americas biblical roots as a shining city on a hill
and its exceptional mission as an exemplar of liberty and a refuge for those
yearning for both freedom and economic opportunity.
American
exceptionalism was thus visibly and permanently put on public display when
the Statue of Liberty was dedicated in 1886.
At the close of the nineteenth century, Frederick Jackson Turner wrote an
influential essay entitled The Significance of the Frontier in American
History. 210 According to Madsen, Turner believed that [i]t was from the
experience of perennial rebirth, fluidity of social institutions, continual
development and proximity to the simplicity of primitive society that there
arose the forces that dominate the American national character. 211 Madsen
observes:
209 Emma Lazarus, The New Colossus, in EMMA LAZARUS: SELECTIONS FROM HER
POETRY AND PROSE 48, 48 (Morris U. Schappes ed., 3d rev. ed. 1967).
210 Frederick Jackson Turner, The Significance of the Frontier in American History
(1893), reprinted in MAJOR PROBLEMS IN THE HISTORY OF THE AMERICAN WEST 2 (Clyde A.
Milner II ed., 1989). See generally DOES THE FRONTIER EXPERIENCE MAKE AMERICA
EXCEPTIONAL? (Richard W. Etulain ed., 1999); DAVID M. WROBEL, THE END OF AMERICAN
EXCEPTIONALISM: FRONTIER ANXIETY FROM THE OLD WEST TO THE NEW DEAL (1993).
211 MADSEN, supra note 12, at 123 (quoting Turner, supra note 210, at 3).
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Id.
See STEPHANSON, supra note 14, at 74-75 (arguing that the closing of the frontier
helped give way to a rebirth of American imperial expansion); id. at 80 (God had given
Anglo-Saxon civilization in general and the United States in particular a command:
Christianize and civilize the world or face divine retribution.).
214 See MADSEN, supra note 12, at 123.
215 Id. at 124.
216 Anders Stephanson adds that the Spanish-American War in the Philippines was
justified by some through a new form of the Manifest Destiny argument, whereby the
American mission was reconceived as a kind of civilizational imperialism under AngloSaxon impress. STEPHANSON, supra note 14, at 67.
217 MEACHAM, supra note 16, at 150.
218 See KOHUT & STOKES, supra note 24, at 14.
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219 Henry R. Luce, The American Century, LIFE, Feb. 17, 1941, at 61, 65, quoted in
MORONE, supra note 15, at 367.
220 MORONE, supra note 15, at 376.
221 See infra notes 315-316 and accompanying text.
222 See MICHAEL KAZIN, THE POPULIST PERSUASION 42-46 (1995).
223 MORONE, supra note 15, at 351.
Morone is paraphrasing a 1932 presidential
campaign speech of Franklin D. Roosevelt. See generally The Philosophy of Social Justice
Through Social Action, PUB. PAPERS 771 (Oct. 2, 1932).
224 See MEACHAM, supra note 16, at 145.
225 Informal, Extemporaneous Remarks to a Number of Visiting Protestant Ministers,
PUB. PAPERS 74, 75 (Jan. 31, 1938).
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226
227
228
229
230
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committed, and to which we are committed today at home and around the
world.
Let every nation know, whether it wishes us well or ill, that we shall
pay any price, bear any burden, meet any hardship, support any friend,
oppose any foe to assure the survival and the success of liberty. 231
Kennedys speech makes all the Puritan exceptionalist claims. He talks about
rights flowing to man from God, the unique commitment of Americans to
liberty since 1776, the torch (think here of the Statue of Liberty) being passed
to a new generation, and an apocalyptic battle between good and evil in which
America will pay any price to assure the success of liberty. What is so
striking, though, about Kennedys inaugural address is that it resonated so
much with ordinary, everyday Americans. It inspired generations of
Americans to join the Kennedy-created Peace Corps and travel the world as
missionaries of the American people. 232 Perhaps Kennedys inaugural address
is one of the most well remembered in American history because it captured
the extent to which Americans see themselves as a shining city on a hill.
Indeed, near the end of his inaugural address, Kennedy charged America to not
only protect its own liberties but to project them in order to truly light the
world. 233
The crusade for civil rights for African Americans represents another classic
American moral movement of the mid-twentieth century with exceptionalist
roots. This crusade, modeled on the abolitionist movement before it, led to the
elimination of segregation and apartheid in American public life. The prophet
of this movement was the American minister Martin Luther King, Jr. Consider
the following exceptionalist rhetoric from his famous I Have a Dream speech,
given on the centennial of the signing of the Emancipation Proclamation:
So I say to you, my friends, that even though we must face the difficulties
of today and tomorrow, I still have a dream. It is a dream deeply rooted
in the American dream that one day this nation will rise up and live out
the true meaning of its creed we hold these truths to be self-evident, that
all men are created equal. 234
King also declared that [w]hen the architects of our republic wrote the
magnificent words of the Constitution and the Declaration of Independence,
they were signing a promissory note to which every American was to fall
231 Inaugural Address, PUB. PAPERS 1, 1 (Jan. 20, 1961) (emphasis added) [hereinafter
Kennedy, Inaugural Address].
232 MORONE, supra note 15, at 432-33 (observing that more Harvard graduates . . .
applied for the Peace Corps than for corporate jobs in the years following Kennedys
inauguration).
233 Kennedy, Inaugural Address, supra note 231, at 3.
234 Martin Luther King, Jr., I Have a Dream (Aug. 28, 1963), in I HAVE A DREAM:
WRITINGS AND SPEECHES THAT CHANGED THE WORLD 101, 104 (James Melvin Washington
ed., 1992) (emphasis added).
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heir. 235 King returned to this theme in his final speech, given on the eve of
his assassination in Memphis, Tennessee, in which he praised the students who
sat-in at lunch counters throughout the South during the 1960s for standing up
for the best in the American dream. And taking the whole nation back to those
great wells of democracy which were dug deep by the Founding Fathers in the
Declaration of Independence and the Constitution. 236 King then closed his
final speech with words that echo poignantly the words of William Bradford:
Ive been to the mountaintop. . . . And Ive looked over. And Ive seen the
promised land. . . . Mine eyes have seen the glory of the coming of the
Lord. 237 King, like William Bradford, 238 had looked over America and had
seen the promised land. But unlike Bradford, King gave his life trying to bring
us there.
The moralism of the civil rights movement marked the end of the social
gospel. Beginning in the 1970s, Americans moved back toward traditional
morality, first with the election of born-again presidential candidate Jimmy
Carter and then, more strikingly, with the conservative presidency of Ronald
Reagan. 239 At the close of the twentieth century, President Ronald Reagan,
arguably the most dominant politician of the last sixty years, explicitly adopted
the American Puritans exceptionalist rhetoric, insisting that America is indeed
a shining city on a hill. Reagans most famous speech on the subject was
given in 1974, long before he was elected president. The speech is worth
quoting at some length, because it is one of the most influential statements of
American exceptionalism ever made.
You can call it mysticism if you want to, but I have always believed
that there was some divine plan that placed this great continent between
two oceans to be sought out by those who were possessed of an abiding
love of freedom and a special kind of courage.
This was true of those who pioneered the great wilderness in the
beginning of this country, as it also is true of those later immigrants who
were willing to leave the land of their birth and come to a land where
even the language was unknown to them. . . .
....
Now we are a nation of 211 million people with a pedigree that
includes blood lines from every corner of the world. We have shed that
American-melting-pot-blood in every corner of the world, usually in
defense of someones freedom. . . . [Other countries have Constitutions
235
Id. at 102.
Martin Luther King, Jr., I See the Promised Land (Apr. 3, 1968), in I HAVE A DREAM,
supra note 234, at 193, 202.
237 Id. at 203.
238 See supra notes 90-91 and accompanying text.
239 See MORONE, supra note 15, at 445.
236
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that] say, Government grants you these rights and ours [sic] says, you
are born with these rights, they are yours by the grace of God, and no
government on earth can take them from you.
....
We cannot escape our destiny nor should we try to do so. The
leadership of the free world was thrust upon us two centuries ago in that
little hall in Philadelphia. In the days following World War II, when the
economic strength and power of America was all that stood between the
world and the return to the dark ages, Pope Pius XII said the American
people have a great genius for splendid and unselfish actions. Into the
hands of America God has placed the destinies of an afflicted mankind.
We are indeed, and we are today, the last best hope of man on
earth. 240
All the great themes of American exceptionalism are evident in this speech,
which recognizes Americans as a special people, in a special land, with a
special mission. Reagan returned to the shining city on a hill theme in the
final paragraphs of his farewell address, emphasizing how central American
exceptionalism was to Reagans worldview.
The past few days when Ive been at that window upstairs, Ive thought a
bit of the shining city upon a hill. The phrase comes from John
Winthrop, who wrote it to describe the America he imagined. What he
imagined was important because he was an early Pilgrim, an early
freedom man. He journeyed here on what today wed call a little wooden
boat; and like the other Pilgrims, he was looking for a home that would be
free.
Ive spoken of the shining city all my political life, but I dont know
if I ever quite communicated what I saw when I said it. But in my mind it
was a tall, proud city built on rocks stronger than oceans, windswept,
God-blessed, and teeming with people of all kinds living in harmony and
peace; a city with free ports that hummed with commerce and creativity.
And if there had to be city walls, the walls had doors and the doors were
open to anyone with the will and the heart to get here. Thats how I saw
it, and see it still.
And how stands the city on this winter night? More prosperous,
more secure, and happier than it was 8 years ago. But more than that:
After 200 years, two centuries, she still stands strong and true on the
granite ridge, and her glow has held steady no matter what storm. And
240
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shes still a beacon, still a magnet for all who must have freedom, for all
the pilgrims from all the lost places who are hurtling through the
darkness, toward home. 241
How Ronald Reagan, who after all acted in many old Westerns, came to
admire Puritan John Winthrop is unclear, but what is clear is that American
exceptionalism played a key role in the rhetoric of our greatest leader of the
last half century. Reagans vision of the shining city on a hill is strikingly
similar to St. Johns vision of the New Jerusalem, as described in the book of
Revelation.
Then I saw a new heaven and a new earth, for the first heaven and
the first earth had passed away, and there was no longer any sea. I saw
the Holy City, the new Jerusalem, coming down out of heaven from God,
prepared as a bride beautifully dressed for her husband. . . .
....
. . . And he carried me away in the Spirit to a mountain great and
high, and showed me the Holy City, Jerusalem, coming down out of
heaven from God. It shone with the glory of God, and its brilliance was
like that of a very precious jewel, like a jasper, clear as crystal. . . .
....
. . . The city does not need the sun or the moon to shine on it, for the
glory of God gives it light, and the Lamb is its lamp. The nations will
walk by its light, and the kings of the earth will bring their splendor into
it. On no day will its gates ever be shut, for there will be no night
there. 242
The powerful Biblical image of the shining city on a hill clearly moved
President Reagan deeply, and it remains profoundly alive today. During the
2000 presidential election campaign, for example, then Governor George W.
Bush insisted that our nation is chosen by God and commissioned by history
to be [a] model to the world. 243 It would be hard to state the essence of
American exceptionalism more succinctly. In his second inaugural address,
Bush stated Americas exceptional moral mission as follows:
There is only one force of history that can break the reign of hatred and
resentment and expose the pretensions of tyrants . . . and that is the force
of human freedom.
We are led, by events and common sense, to one conclusion: The
survival of liberty in our land increasingly depends on the success of
241
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liberty in other lands. The best hope for peace in our world is the
expansion of freedom in all the world.
Americas vital interests and our deepest beliefs are now one. . . .
So it is the policy of the United States to seek and support the growth
of democratic movements and institutions in every nation and culture,
with the ultimate goal of ending tyranny in our world. 244
As Jon Meacham concludes, At every significant point in the four centuries
since English settlers laid the foundations for the nation we know at every
significant point American leaders and the great majority of the American
people have explicitly said or acted as though they understood history in terms
of this public religion. 245
In conclusion, Americans are a uniquely moralistic people. This moralism
has its roots in the Puritans belief that New England was a land promised to
them by God, that they were an elect group of believers predestined for
salvation, and that their new civilization would become a light and a guide to
all the nations of the earth. Remarkably, this core idea remains vibrantly alive
four centuries later in the belief of many Americans that America is a special
place with a special kind of people and a special role to play vis--vis the rest
of the world. Although the Puritan vision of the shining city on a hill has been
gradually shorn of its most sectarian Protestant claims over the last four
hundred years, American exceptionalism remains a vital part of the ideology of
what it means to be an American. One can approve or disapprove of the
ideology of American exceptionalism as a normative matter, but one cannot
deny that as a positive matter the ideology exists and has deep roots.
III. THE REALITY OF AMERICAN EXCEPTIONALISM: A SUMMARY OF SOME OF
THE WAYS IN WHICH THE UNITED STATES HAS BECOME AN EXCEPTIONAL
NATION
We saw in Part II above that Americans have believed for four centuries in
an ideology of American exceptionalism. We will now see how the
distinctively American faith in liberty, religious freedom, and patriotism has
caused the United States to become really quite different from all the other
nations of the world. Not only does the United States differ from the nations
of Western Europe, including Great Britain from which it sprang, but it is also
exceptional among the countries of the New World, differing markedly from
the nations of Central and South America and even from its northern cousin
Canada. Like it or not, Americans really are a special people with a special
ideology that sets us apart from all the other peoples of the Old and New
Worlds.
244
245
Second Inaugural Address, 41 WEEKLY COMP. PRES. DOC. 74, 74 (Jan. 20, 2005).
MEACHAM, supra note 16, at 24.
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[Vol. 86:1335
246
2006]
B.
1375
The first big area in which the United States is in fact exceptional is in the
ideology of its citizens. In the words of Seymour Martin Lipset:
Born out of revolution, the United States is a country organized around an
ideology which includes a set of dogmas about the nature of a good
society. Americanism, as different people have pointed out, is an ism
or ideology in the same way that communism or fascism or liberalism are
isms. As G. K. Chesterton put it: America is the only nation in the
world that is founded on a creed. That creed is set forth with dogmatic
and even theological lucidity in the Declaration of Independence . . . .
[The American] ideology can be described in five words: liberty,
egalitarianism, individualism, populism, and laissez-faire.
The
revolutionary ideology which became the American Creed is liberalism in
its eighteenth- and nineteenth-century meanings, as distinct from
conservative Toryism, statist communitarianism, mercantilism, and
noblesse oblige dominant in monarchical, state-church-formed
cultures. 256
Graham Wilson agrees that the United States is to a unique degree a classically
liberal society, and he credits this idea to Louis Hartzs book, The Liberal
Tradition in America. 257 Micklethwait and Wooldridge add that Americans
are both more individualistic than continental Europeans and also more
traditional. 258 In Lipsets view, the rampant individualism of American
culture is both a good and bad thing. It leads to creativity, self-reliance, and
hard work to a degree that is the envy of other countries around the world. 259
It also has, according to Lipset anyway, a dark underside. 260
1.
256 LIPSET, supra note 20, at 31 (second alteration in original) (quoting G.K.
CHESTERTON, WHAT I SAW IN AMERICA 7 (1922)).
257 See WILSON, supra note 22, at 4 (citing LOUIS HARTZ, THE LIBERAL TRADITION IN
AMERICA (1955)).
258 MICKLETHWAIT & WOOLDRIDGE, supra note 21, at 312.
259 LIPSET, supra note 20, at 26, 55-58.
260 See id. at 26 (explaining that much of what people deplore about the United States,
such as moral decline and high crime or divorce rates is actually closely linked to
American values which presumably they approve of, those which make for achievement and
independence).
261 See id. at 269.
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262
2006]
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French people and four in ten Britons and Germans. 268 Similarly, Kohut and
Stokes note that 60 percent of Americans agreed with the broad statement
Our people are not perfect, but our culture is superior to others a proportion
almost twice that found in France (33 percent), somewhat more than in Britain
and Germany, and approached only by neighboring Canada (49 percent). 269
They add that 70 percent of Americans believe it is a good thing that U.S.
ideas and customs are spreading around the world, while citizens of other
countries are much more ambivalent about this phenomenon. 270 The rest of
the world often seems to perceive the United States as being very jingoistic.
That perception is grounded in reality. Americans are exceptional in their
patriotism, just as they are exceptional in their commitment to rugged
individualism.
Finally, Kohut and Stokes say that Americans are more optimistic and
happier than most people and consistently express more satisfaction with the
way that their lives are going than do the people of any other country in the
world. 271 [Eighty-one] percent of adults were optimistic about what the
twenty-first century held for them and their families . . . . 272 Similarly, Lipset
reports that Americans also show up as among the most optimistic people in
Gallup Polls taken annually in thirty countries between 1976 and 1992. 273
Kohut and Stokes quote Carnegie Endowment scholar Minxin Pei as saying
that American nationalism is triumphant rather than aggrieved and that it is
forward looking, while nationalism in most other countries is the reverse.
Those who believe in the superiority of American values and institutions do
not dwell on their historical glories . . . . Instead, they look forward to even
better times ahead . . . . 274 Pei says quite rightly that this gives American
nationalism . . . a missionary spirit and a short collective memory. 275
C.
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2006]
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that the United States is a world leader in gross domestic product (GDP) and
in productivity. 286 Lipset goes on to observe that [f]rom 1973 to 1987, 30
million jobs were created in the United States, while the Western European
countries experienced a small decline. Japan and Australia also gained jobs
over the period, but not nearly as fast. 287 Americans work harder than
citizens of many other leading Western countries. France, for example, has a
thirty-five hour work week, and it is common in Western Europe for many to
take six weeks of vacation time a year. 288
There can be no question that economically the United States is clearly an
exceptional, outlier country. Americans work harder, produce more, and are
much more libertarian than Europeans or Canadians. Americans reward hard
work and increased productivity much more than Europeans and Canadians do.
D.
Religion
286
Id. Lipset reports that during the early 1990s, the United States led the Group of
Seven major industrialized countries in GDP, with the GDP per head at US$22,204 as
compared to US$19,500 in second-place Germany. Id.
287 Id. at 57.
288 Triplet & Associs, French Law: The Standard French Working Week, http://
www.triplet.com/50-10_employment/50-20_workingtime.asp (last visited Dec. 1, 2006);
Leslie Evans, Two Economists Look at Europes Economic Slowdown (Nov. 22, 2004),
http://www.international.ucla.edu/article.asp?parentid=16974.
289 LOCKHART, supra note 23, at 8.
290 See RALPH FRASCA, BENJAMIN FRANKLINS PRINTING NETWORK: DISSEMINATING
VIRTUE IN EARLY AMERICA 7-21 (2006); GORDON S. WOOD, REVOLUTIONARY CHARACTERS:
WHAT MADE THE FOUNDERS DIFFERENT 70, 74-77 (2006).
291 LIPSET, supra note 20, at 60 (quoting WEBER, supra note 141, at 175).
292 Id.
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which are anti-elitist. Hence, the political ethos and the religious ethos have
reinforced each other. 293
Americas exceptional faith or as Lipset sees it, religiosity can be
documented in opinion polls with respect to both beliefs and practices of
behavior. 294 Lipset notes that
polls indicate Americans are the most churchgoing in Protestantism and
the most fundamentalist in Christendom. One comparative survey shows
94 percent of Americans expressing faith in God, as compared with 70
percent of Britons and 67 percent of West Germans. In addition, 86
percent of Americans surveyed believe in heaven; 43 percent say they
attend church services weekly. The corresponding numbers for British
respondents are 54 percent accepting the existence of heaven and only 14
percent indicating they attend church weekly. . . . A remarkable 69
percent of Americans state they believe the Devil exists, as compared to
one third of the British, one fifth of the French, 18 percent of the West
Germans, 12 percent of the Swedes, and 43 percent of the Canadians. . . .
Close to four fifths of Americans surveyed report that religion is very or
quite important in their lives, while only 45 percent of Europeans
(Germans, French, Britons, Italians, Austrians, and Dutch) on average
give similar answers. 295
Micklethwait and Wooldridge report similar findings: In America 95 percent
of people believe in God, against 76 percent of Britons, 62 percent of the
French and 52 percent of Swedes. 296 They compare American religiosity to
levels found only in developing countries like Nigeria and Turkey, 297 and say
that [n]owhere else do Evangelical Protestants carry such great weight.298
Micklethwait and Wooldridge conclude that America is a country of
fundamentalists of all sorts, secular as well as religious, thanks to its
constitutional tradition, its legal culture and perhaps its Puritan heritage. 299
Andrew Greeley disagrees to some extent with Lipset and Micklethwait and
Wooldridge; he argues that the other developed Western democracies are
exceptionally secular just as much as the United States is exceptionally
religious. 300 Greeley notes that many countries, including Iran, Brazil, Poland,
Croatia, and those in the Third World, are all just as religious as the United
States, and he argues that it is the other advanced democracies that are the real
293
Id. at 61.
Id. at 60-62.
295 Id. at 61-62 (footnotes omitted).
296 MICKLETHWAIT & WOOLDRIDGE, supra note 21, at 310.
297 Id. at 313.
298 Id. at 310.
299 Id. at 311.
300 Andrew Greeley, American Exceptionalism: The Religious Phenomenon, in IS
AMERICA DIFFERENT?, supra note 71, at 94, 105 (A consideration of the rest of the world
suggests not that North America is unique, but that Europe is.).
294
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outliers. 301 The nations of Latin America, Africa, the Islamic World, and India
are also very devout. Ultimately, the point is a semantic one since Greeley
agrees that the United States is the most religious of the economically
developed countries in the world. 302 It might also be pointed out that many
other parts of the developing world other than India, such as China and
southern Asia, are not especially religious.
I think Lipset and Micklethwait and Wooldridge are clearly right that
Americans are exceptionally religious, and Lipset is also right that present day
Americans accept an exceptionalist creed 303 similar to that discussed in Part II.
Most present day Americans think America is a special country with a special
people on a special mission in the world. Lipset, relying partly on the words of
Robert Bellah, notes that [t]he United States is seen as the new Israel.
Europe is Egypt; America the promised land. God has led his people to
establish a new sort of social order that shall be a light unto all nations.304
Moreover, [t]he strength of American religion shows no sign of
diminishing. . . . [C]hurch membership may have declined by about five
percent [since the 1930s], while church attendance may actually be higher
today than it was fifty years ago. 305
James Morone agrees with Lipset and Micklethwait and Wooldridge, noting
that American religiosity is revealed by the fact that [e]ighty-seven percent of
Americans say adultery is always wrong, . . . compared to just 48 percent of
French. 306 He adds that only in America would political candidates
routinely assure the nation that they have, certainly, been born again. 307
Kohut and Stokes reach the same conclusion that Americans are exceptionally
religious and report the striking finding that [a]bout the same number of
301
Id.
See Greeley, supra note 300, at 105, 114-15 (observing that the United States is more
religious than secularized Europe but acknowledging some similarities in levels of religion
in the United States, non-Anglican England, and Canada). Greeley reports that
[m]ost of the lines one would draw on a graph of American religious behaviour through
the years are straight lines: more than 95 per cent believe in God; 77 per cent believe in
the divinity of Jesus; 72 per cent believe in life after death with certainty, while another
20 per cent are unsure; 70 per cent believe in hell, 67 per cent in angels, 50 per cent in
the devil; 34 per cent belong to a church-related organization; a third have had some
kind of intense religious experience; half pray at least once a day and a quarter pray
more than once a day; a third have a great deal of confidence in religious leadership;
more than half think of themselves as very religious.
Id. at 99. These numbers broadly confirm the picture Lipset paints of Americans being a
very religious people.
303 See supra note 256 and accompanying text.
304 LIPSET, supra note 20, at 64 (quoting ROBERT BELLAH, BEYOND BELIEF 175 (1970)).
305 Id. at 279 (quoting WILLIAM G. MAYER, THE CHANGING AMERICAN MIND 33 (1992)).
306 MORONE, supra note 15, at 23.
307 Id. at 37.
302
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Americans say they believe in creationism as in evolution. 308 They add that
Americans are closer to Muslims than to Europeans with respect to
observance and commitment, as well as on attitudes of personal morality such
as homosexuality. 309 Apparently, America has always been like this. Kohut
and Stokes quote Tocqueville as saying: Here and there in the midst of
American society you meet with men full of a fanatical and almost wild
spiritualism, which hardly exists in Europe. From time to time strange sects
arise which endeavor to strike out extraordinary paths to eternal happiness.
Religious insanity is very common in the United States. 310
In sum, Tocqueville said it best when he claimed that [t]here is no country
in the world where the Christian religion retains a greater influence over the
souls of men than in America. 311 This statement still rings true today.
E.
A Moralistic Country
308
309
310
311
312
313
314
315
316
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like that of Communist China or Cuba, and our policy of ending all wars with a
demand for unconditional surrender. 317
American faith and moralism are also evident in our political scandals and
desire to prosecute public officials. Europeans have long noted and taken
pleasure in the fact that American politicians are frequently burned at the stake
for sexual peccadilloes that would draw a yawn in Paris or Berlin. 318 But, it
could be argued, American faith and moralism do not always stop there.
Moralism, at times, extends to allegations of criminal misconduct as well.
Thus, former Democratic House Speaker Jim Wright was portrayed as a crook,
not a misguided hack. Bill Clinton was Satan himself, possibly even complicit
in the murder of his good friend Vince Foster. Tom DeLay and Karl Rove are
not honorable opponents to most contemporary Democrats; they are criminals.
President George W. Bush is not simply wrong about the war in Iraq, he is a
liar who misled the country into war to benefit Halliburton and the big oil
companies he and his father once worked for. And on and on it goes.
According to Lipset, quoting American Enterprise Institute scholar and
leading Democrat Norman Ornstein, moralism in criminal law is also evident
in
the reform-era creation of a Public Integrity Section in the Justice
Department, which defines its success by the volume of prosecution of
public officials. As a result . . . between 1975 and 1989 the number of
federal officials indicted on charges of public corruption increased by a
staggering 1,211 percent, whereas the number of non-federal public
officials indicted doubled during the same period. 319
It seems highly unlikely that federal corruption increased by 1211 percent after
1975 while state corruption only doubled, but the urge to find public officials
to prosecute may have trumped the facts. The use of the highly moralistic and
dubious institution of the court-appointed special prosecutor between 1978 and
1999 similarly reflects Americans uniquely moralistic response to
misbehavior by public officials. The special prosecutor law led to a series of
prosecutorial witch hunts in the Iran-Contra and Whitewater affairs until in
1999, with the concurrence of both Democrats and Republicans, it was allowed
to go out of existence. 320
317 Id. at 65-66 (contrasting U.S. foreign policy of non-recognition and insistence on
unconditional surrender with other nations foreign policies).
318 See id. at 27.
319 Id. at 286 (quoting Norman J. Ornstein, Less Seems More: What To Do About
Contemporary Political Corruption, RESPONSIVE COMMUNITY, Winter 1993/94, at 7, 16-17).
320 See generally Benjamin J. Priester et al., The Independent Counsel Statute: A Legal
History, LAW & CONTEMP. PROBS., Winter 1999, at 5 (examining the law generated by the
independent counsel statute); Christopher H. Schroeder, Foreword, LAW & CONTEMP.
PROBS., Winter 1999, at 1 (discussing the likely demise of the independent counsel statute).
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321 JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING
DIVIDE BETWEEN AMERICA AND EUROPE 14 (2003).
322 MICKLETHWAIT & WOOLDRIDGE, supra note 21, at 300; see also MORONE, supra note
15, at 3 (reporting that the United States has 3 percent of its population in jail or prison, on
parole, or under probation).
323 MICKLETHWAIT & WOOLDRIDGE, supra note 21, at 301.
324 Id.
325 WHITMAN, supra note 321, at 6.
326 See id. at 10-11.
327 See EDWARD BEHR, PROHIBITION: THIRTEEN YEARS THAT CHANGED AMERICA 10-11
(1996) (describing Americans unique obsession with the Temperance issue and
contrasting Prohibition in the United States with European attitudes toward drinking).
328 MICKLETHWAIT & WOOLDRIDGE, supra note 21, at 302.
329 Id.
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only heroin, cocaine, and various hallucinogens, but also marijuana even when
used for medical purposes. These drug laws, which often impose prison
sentences of twenty to thirty years, are by global standards extremely
draconian. No other western democracy imprisons people so long for narcotics
offenses. 330 Americas ongoing war against drugs is as exceptional in our day
as Prohibition was in the 1920s. Similarly exceptional is the moralistic crusade
against smoking that Americans have undertaken in recent years.
Micklethwait and Wooldridge report that [n]o country treats smokers (or
indeed tobacco companies) with such vindictiveness as the United States. 331
2.
330
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Private Philanthropy
A more positive side effect of American moralism and religious faith is the
fact that the expansion of philanthropy . . . has gone further . . . in the United
States, than in any other part of the world. 338 Lipset, relying partly on the
words of an Englishman who visited the United States in the 1830s, observed:
The separation of Church and State, and other causes, have given rise to
a new species of social organization, before unknown in history. . . .
Many communal functions which had been handled in Europe by the state
or by state-financed churches were dealt with in nineteenth-century
America by voluntary associations. 339
Various private institutions, such as colleges and universities and hospitals,
have been widely diffused in this country and are supported by the most
extensive pattern of voluntary contributions in the world. 340 Micklethwait
and Wooldridge note that America has been much more inclined to let public
work be covered by private philanthropy than Europe has, as is evidenced by
the creation here of great universities like Stanford and Chicago; great
galleries like the Getty and the Frick; [and] great medical research centers like
Rockefeller University. 341 Lipset observes that religious beliefs often
influence these charitable contributions. He adds that
[p]eople have been expected to be righteous, hardworking, and ambitious.
Righteousness is to be rewarded both in the present and the hereafter, and
the successful have an obligation to engage in good works and to share
the bounty they have attained. A detailed study by Merle Curti of the
history of American giving for overseas purposes stresses the role that
the doctrine of stewardship played, the belief that whatever of worldly
means one has belongs to God, that the holder is only Gods steward and
obligated to give to the poor, the distressed, and the needy. From many
diaries, letters and other evidence it is clear that this factor was a
dominant one in a great deal of giving. 342
338
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Ninety percent of all charitable giving in the United States come[s] from
individuals, and [s]eventy-two percent of American households gave
charitable contributions in 1991. 343
G.
The flip side to this private philanthropy of Americans is that the United
States has a strikingly small public sector and is the only major advanced
democracy to lack a national health care system. 344 In other words, socialism
is really unpopular in the United States in an unusual way. Lipset stresses that
with respect to welfare programs,
[t]he United States is an outlier (exceptional) in practice as well as belief.
Its taxes amount to a much lower proportion of GDP compared to
European Community countries and Japan. While America collected 31
percent of its GDP in tax revenues in 1991, other countries such as
Sweden (52%), Holland (48%), Belgium (40%), France (40%), and the
United Kingdom (36%) were taxed at higher levels. 345
Micklethwait and Wooldridge make the same point and note that these figures
are even smaller when you remember that America spends so much more on
defense than other countries: $1,138 per person in 2002 compared with $590 in
Britain (and much less in most other European countries). 346 Charles
Lockhart agrees and says that America provides considerably less money for
its public sector than do the other advanced industrial societies of Western
Europe, North America and the Pacific rim, 347 and he notes that the United
States is well known for its fidelity to a Lockean conception of limited
government. 348 He adds that American taxes are much flatter across the
range of income distributions and are therefore less redistributive than are
taxes in other Western democracies. 349 Kohut and Stokes say that Americans
are less strongly committed than other peoples to the concept that their
government is responsible for taking care of those who cannot care for
themselves, 350 and are more action-oriented, individualistic in their behavior,
and more opposed to the intrusions of government than Europeans and
others. 351
343
Id. at 71.
See id. at 71-75 (contrasting the limited role of the U.S. government in establishing
social programs and redistributive policies with the active governments of other nations).
345 Id. at 73.
346 MICKLETHWAIT & WOOLDRIDGE, supra 21, at 303.
347 LOCKHART, supra note 23, at 1, 42.
348 Id. at 43.
349 See id.
350 KOHUT & STOKES, supra note 24, at 19.
351 Id. at 18.
344
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352
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Wilson makes solid points that do call into question the extent to which the
United States is different from other democracies in having a smaller
government, but there are responses to be made to each of Wilsons arguments.
First, American unemployment and welfare expenses are arguably lower than
Europes precisely because the United States has a smaller state sector.
Unemployment rates in France and Germany are about twice as high as they
are in the United States, 360 and I think the reason why is that those countries
economies are more socialistic. Second, the decision not to nationalize health
care may explain a lot of the gulf between the size of the U.S. government
compared to Britains, but it is a really big decision. The health care sector
accounts for sixteen percent of the total size of the American economy, 361 and
Americans spend more on health care than do the citizens of any other
country. 362 The decision to keep this sector of the economy private is therefore
an ideological decision. Third, the United States may intervene a lot in its
economy through tax expenditures and regulations, but these are less intrusive
methods of intervention than nationalizing the decisions involved, which is
what other modern democracies have done. In sum, Wilson raises some
important caveats to the conventional wisdom about government being much
smaller in the United States than in other advanced democracies, but he does
not succeed in calling the basic point into question. At most, Wilsons
arguments show that the gap between the United States and Britain and
Sweden is not quite as big as it first appears. He does not succeed in showing
that there is no gap at all.
H.
The United States is also politically exceptional because it alone, of all the
Western democracies, has never had a successful socialist party. 363 Not only is
360
Compare Press Release, Bureau of Labor Statistics, U.S. Dept of Labor, The
Employment
Situation:
December
2006
(Jan.
5,
2007),
available
at
http://www.bls.gov/news.release/pdf/empsit.pdf (stating that the unemployment rate in the
United States was 4.5% in December 2006), with The World Factbook: France,
https://cia.gov/cia/publications/factbook/geos/fr.html (last visited Dec. 1, 2006) (estimating
that the unemployment rate in France was 9.9% in 2005), and The World Factbook:
Germany, https://cia.gov/cia/publications/factbook/geos/gm.html (last visited Dec. 1, 2006)
(estimating that the unemployment rate in Germany was 11.7% in 2005).
361 See Press Release, Ctrs. for Medicare and Medicaid Servs., Continued Slowdown in
Health Care Cost Growth Projected in 2005 and 2006 (Feb. 22, 2006), available at http://
www.cms.hhs.gov/apps/media/press/release.asp?Counter=1787 (reporting that health care
represented sixteen percent of GDP in 2004).
362 Press Release, Johns Hopkins Bloomberg Sch. of Pub. Health, U.S. Still Spends More
on Health Care Than Any Other Country (July 12, 2005), available at http://
www.jhsph.edu/publichealthnews/press_releases/2005/anderson_healthspending.html.
363 LIPSET, supra note 20, at 77 (The United States has stood out among the industrial
nations of the world in frustrating all efforts to create a mass socialist or labor party.); see
also Bell, supra note 71, at 51 (For intellectuals, and particularly for radicals who think of
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the United States exceptional in lacking a socialist party, the United States is
also exceptionally hostile to unions and to organized labor. 364 Union density
in the United States has dropped sharply in the postwar period and is
declining to pre-1930s levels, or possibly lower. 365 The reason, according to
Lipset, is that from sociological and political points of view, the United States
was too progressive, too egalitarian, too open, and too democratic to generate
massive radical or revolutionary movements on a scale comparable to those of
Europe. 366 Moreover, [e]conomic and population growth and an open land
frontier produced high rates of social mobility, a factor also stressed by Marx
in the early 1850s. 367
The striking American hostility to socialism and unions is underlined, as
Lipset notes, when one compares the United States with its neighbor to the
north. Canada resembles the rest of the industrial world in having socialist
and trade union movements which are much stronger than those in the United
States. 368 American unions are tiny by comparison and have commanded
smaller and smaller percentages of the work force in recent years. 369 These
differences between the United States and Canada date back to the American
Revolution, because [t]he United States is the country of the revolution [and]
Canada [is the country] of the counter-revolution. 370 During and after the
revolution, a lot of Tory Monarchical Americans moved north to Canada and a
lot of Canadian Whigs moved south to the United States. 371 As a result, the
two English-speaking neighbors sorted themselves out into a Tory statist
society in Canada with an established Church of England and a Whig
individualist society in the United States with Protestant sects
predominating. 372 The result today is that opinion polls show that Canadians,
at both elite and mass levels, are more supportive than Americans of state
2006]
1391
373
Id. at 92.
Gary Bowden, Labor Unions in the Public Mind: The Canadian Case, 26 CANADIAN
REV. SOC. & ANTHROPOLOGY 723, 740 n.19 (1989), quoted in LIPSET, supra note 20, at 105.
375 See MICKLETHWAIT & WOOLDRIDGE, supra note 21, at 334-38.
376 Id.
377 See id. at 8.
378 See id. at 308-12 (The people who want to ban abortion in America may be in a
minority, but they are a much bigger minority than in other countries . . . .).
379 545 U.S. 469 (2005); see also Julia D. Mahoney, Kelos Legacy: Eminent Domain
and the Future of Property Rights, 2005 SUP. CT. REV. 103, 104-05 (describing the
conflagration of outrage sparked by Kelo).
380 MICKLETHWAIT & WOOLDRIDGE, supra note 21, at 315.
381 Id.
382 VICKI C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW 10981102 (2d ed. 2006).
383 LOCKHART, supra note 23, at 6-7, 30; see also WILSON, supra note 22, at 103, 106.
374
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They have also led to a society with a uniquely large number of lawyers who
have a conservative influence on American public life. 384 Having started out
down this road of constitutionally limited government, Americans may have
found themselves constrained by path dependency from moving in different,
more activist directions. 385
I.
The United States is also exceptional in the tremendous military power that
it has along with the foreign policy clout that unrivaled military dominance
brings. As Micklethwait and Wooldridge acknowledge, America is the only
country that can project military might globally. 386 The U.S. military is so
preeminent that America spends 40 percent (and rising) of the worlds total
military expenditure. 387 Micklethwait and Wooldridge add that [f]ifty-five
percent of Americans strongly agree that war is sometimes necessary to
obtain justice; the figure in Europe is just 18 percent. 388 Kohut and Stokes
report similar findings, noting that [m]ore than three-fourths of all Americans
believe that under some conditions war is justified to obtain justice; only about
one in four Europeans agree. 389 Kohut and Stokes also note that
42 percent of Americans strongly agreed that under some conditions,
war is necessary to obtain justice. In contrast, only 11 percent of
Europeans held such strong sentiments.
Another 36 percent of
Americans, compared to 25 percent of Europeans, agreed somewhat.
European support for resorting to war would have been even lower if only
the opinions of continental Europeans were considered: Britons were
three times as likely as the French, Germans, or Spanish to strongly
believe that war is sometimes necessary. 390
America is thus uniquely powerful and increasingly unilateralist in global
affairs. No other country compares with it. 391
Micklethwait and Wooldridge note that [w]hen Europeans think about
American exceptionalism, the first thing they turn to is American foreign
384
See Andrew Moravcsik, The Paradox of U.S. Human Rights Policy, in AMERICAN
EXCEPTIONALISM, supra note 27, at 147, 157-58 (acknowledging that American elites are
disproportionately composed of lawyers and that lawyers often adopt conservative
positions).
385 See LOCKHART, supra note 23, at 7 ([O]nce a society starts building particular public
institutions . . . or policies . . . it becomes increasingly difficult across time to effect
institutional or policy change which breaks free of the initial paths confining influence.).
386 MICKLETHWAIT & WOOLDRIDGE, supra note 21, at 297.
387 Id. at 298.
388 Id.
389 KOHUT & STOKES, supra note 24, at 114.
390 Id. at 196-97.
391 See generally SIOBHN MCEVOY-LEVY, AMERICAN EXCEPTIONALISM AND US FOREIGN
POLICY: PUBLIC DIPLOMACY AT THE END OF THE COLD WAR (2001).
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policy. 392 They report that [n]o other country supports Israel so adamantly
or condemns Cuba so utterly. 393 Kohut and Stokes add that
[m]ore concretely, Americans attitudes toward Israel are heavily
influenced by religion. One in three Americans who sympathize with
Israel said their sympathy for the Jewish state comes from their religious
beliefs. Beyond sympathy, two in five Americans believed Israel was
given to the Jewish people by God, and one in three said creation of the
state of Israel is a step toward the Second Coming of Christ. 394
Some authors argue that the United States is as exceptional in its treatment
of international human rights matters as it is in its exercises of military power.
Michael Ignatieff has suggested that while the United States is a leader in the
promotion of international human rights abroad, it has also resisted complying
with human rights standards at home or aligning its foreign policy with these
standards abroad to an unmatched degree, 395 an assertion echoed by Yale Law
Dean Harold Koh. 396 The U.S. Constitution is partly responsible for this
paradox, because it requires a two-thirds majority of the Senate for
ratification of international treaties, thus imposing a significantly higher bar to
incorporation of international law than do other liberal democracies. 397 While
this constitutional hurdle to the ratification of international human rights
treaties alone makes the United States exceptional, Americas international
preeminence and military power further set it apart from other nations.
J.
Demography
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America, where the median age will remain about thirty-five for the next
half-century, is bound to be more youthful in its approach to the world
than Europe, where the median age will jump from thirty-eight to fiftythree, and Japan, where it will rise from forty-one to fifty-three. 400
Graham Wilson adds that a key explanation of American exceptionalism is that
[t]he United States is a country created by immigration. 401 Charles Lockhart
makes a similar point, saying that [t]he openness of the United States to
transforming migrants from other societies into citizens is relatively
unusual. 402 Micklethwait and Wooldridge conclude that [m]ost immigrants
saw and still see America as a land of milk and honey compared with their
old homelands. Most have embraced their new country with the enthusiasm of
converts and followed the path of upward mobility . . . . 403
Not only is America unique compared to other Western democracies in
terms of immigration, America is also unique in being a genuinely multiracial
society with large African American, Asian American, and Hispanic
minorities. 404 Wilson quotes Lawrence Fuchs as saying rightly that [n]o
nation in history ha[s] been as successful as the United States in managing
ethnic diversity. 405 No other major Western democracy is as racially diverse
as is the United States, and while the United States has made grievous mistakes
in the past in mistreating racial minorities, no other Western democracy
currently includes such minorities in its public life as much as the United
States does. 406 One need only contrast continental European failures to
integrate Europes Islamic immigrants with American successes since 1964 in
integrating racial minorities to see the vibrancy and uniqueness of the
American model.
Kohut and Stokes agree that Americans do a better job of integrating racial
minorities than do other nations, explaining that [o]n questions of ethnicity
and ethnic minorities . . . Americans are more open-minded [than Europeans],
in part due to the American embrace of the melting pot. 407 They add that
Americans for their part take an overwhelmingly positive view of the
countrys two largest minorities: African-Americans and Hispanics. Nearly
eight in ten say blacks have a good influence on the country and two-thirds say
400
Id.
WILSON, supra note 22, at 11.
402 LOCKHART, supra note 23, at 2.
403 MICKLETHWAIT & WOOLDRIDGE, supra note 21, at 330.
404 Id. at 238-39.
405 WILSON, supra note 22, at 91 (quoting LAWRENCE H. FUCHS, THE AMERICAN
KALEIDOSCOPE: RACE, ETHNICITY, AND THE CIVIC CULTURE 492 (1990)).
406 See WILSON, supra note 22, at 87-88, 91 (observing that although Americans have at
times depart[ed] from American ideals in their treatment of immigrants, Americans have
indeed been mostly successful and principled practitioners of the politics of
accommodation).
407 KOHUT & STOKES, supra note 24, at 51.
401
2006]
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that about Hispanics. 408 They also say that Americans and Canadians express
a much more positive view toward immigrants than do the citizens of other
advanced countries. 409 Kohut and Stokes note that [o]nly a third of Germans
take such a positive view of the Turkish and Eastern European immigrants in
their midst, and only half the French look positively on recent arrivals from
North Africa. 410
K.
Geography
408
Id. at 52.
Id.
410 Id. at 154.
411 LOCKHART, supra note 23, at 3. Similarly, England long had a minimalist state
because the fact that it was an island made English defense more a matter of having a strong
navy than of having a liberty-threatening standing army. STEPHANSON, supra note 14, at 22.
412 See LOCKHART, supra note 23, at 28-29 (examining the impact of events such as war
and economic depression on the size of the public sector and strength of national
government).
413 Id. at 28.
414 See id. at 28-29.
415 KOHUT & STOKES, supra note 24, at 64.
416 MICKLETHWAIT & WOOLDRIDGE, supra note 21, at 331.
417 See id.
418 See Green Car Congress, Per-Capita Car Ownership in China To Climb 67% by 2010
(May 24, 2006), http://www.greencarcongress.com/2006/05/percapita_car_o.html (stating
409
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Summary
that as of 2002, there were 765 vehicles per 1000 people in the United States, compared to
an average of 300 vehicles per 1000 people in Europe).
419 KOHUT & STOKES, supra note 24, at 89.
420 See MICKLETHWAIT & WOOLDRIDGE, supra note 21, at 329-30.
421 See LIPSET, supra note 20, at 268.
422 Id.
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423
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of the last forty years. 429 The reason these battles occur is that both the left
and right wing sides see control of the Court and interpretation of the
Constitution as central to defining Americas exceptional moral mission in
their own terms. He who controls the interpretation of the Constitution
controls the meaning of the American creed, which is itself of religious
dimensions.
The tendency of Americans to view defining the Constitution as central to
defining Americas exceptional mission in the world also explains the sense of
horror many feel when Justice Kennedy construes our exceptional Constitution
with reference to foreign law. The whole point of being Americans for many
of us is that we are not Europeans; we are a special people, in a special land,
with a special mission. Kennedys borrowing of foreign law grates on the
sensibilities of some of his fellow citizens and has led a few to call for his
impeachment. 430 Notwithstanding the Supreme Courts long practice of citing
foreign law in low visibility constitutional cases, it is startling to many
Americans that the Supreme Court construes the Constitution with reference to
foreign law when deciding hotly contested current moral and social issues.
A.
Both Sanford Levinson and Michael Kammen argue that Americans revere
the Constitution as a kind of Ark of the Covenant of the New Israel that is
America. Levinson quotes Anne Norton as describing
the Puritans in particular as children of the covenant, of a long series of
covenants between man and God, and man and man: God and Noah, God
and Abraham, the new covenant of the New Testament, the Magna Carta,
[and] the Mayflower Compact, to which their descendants would add
the Constitution. 431
Levinson observes that [h]istorically intrinsic to the notion of covenant has
been the notion of writing, which establishes the covenant. 432 A distinctive
feature of constitutions is that, like the Ten Commandments, they are written
down. Our Constitution may not be written in stone, but it is so hard to amend
that it might as well be.
Levinson quotes Jefferson as commenting in 1816 that [s]ome men look at
constitutions with sanctimonious reverence and deem them like the ark of the
429
2006]
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covenant, too sacred to be touched. 433 Others too made similar observations
later in our history. Thus, Levinson quotes Alexander Bickel, who discussed
the secular religion of the American republic, in which we find our visions
of good and evil, 434 and he quotes Max Lerner, who said that [e]very
tribe . . . clings to something [in our case the Constitution] which it believes to
possess supernatural powers, as an instrument for controlling unknown forces
in a hostile universe. The American tribe is no different. 435
Michael Kammen notes that in 1823, Supreme Court Justice William
Johnson famously called the Constitution the most wonderful instrument ever
drawn by the hand of man. 436 As early as 1834, Congressman Caleb Cushing
called the Constitution our Ark of the Covenant. 437 Similarly, in his
inaugural address in 1837, Martin Van Buren described the Constitution as a
sacred instrument carefully and not easily framed. 438 Kammen reports further
that [s]choolbooks of that era often stated that the Constitution had been
divinely inspired. Their authors could not refer to the Constitution without a
choral vocabulary of revered, glorious, and sacred. 439 Indeed, Lance
Banning has rightly said that [t]he quick apotheosis of the American
Constitution was a phenomenon without parallel in the western world. 440
Levinson also captures the covenantal role of the Constitution in twentieth
century America by pointing to Justice Felix Frankfurters observations about
the significance of his own naturalization ceremony when he became an
American citizen.
Levinson quotes Frankfurter as saying that, with
naturalization, he had shed old loyalties and take[n] on the loyalty of
American citizenship, 441 and that even though he had abandoned Judaism,
perhaps the feelings that underlie religious forms [for others] for me run into
intensification of my feelings about American citizenship. 442 Frankfurter
concludes tellingly by saying that American citizenship implies entering
upon a fellowship which binds people together by devotion to certain feelings
433
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and ideas and ideals summarized as a requirement that they be attached to the
principles of the Constitution. 443 This same sentiment was expressed
strikingly in 1968 by Whittle Johnson: What, then, does it mean to be an
American? To be an American means to be a member of the covenanting
community in which the commitment to freedom under law, having
transcended the natural bonds of race, religion, and class, itself takes on
transcendent importance. 444 Levinson correctly claims that [t]he central
covenant of the community, from this perspective, is the Constitution. 445
Levinson notes similar sentiments from neoconservative writer Irving Kristol
who, in Levinsons words, has argued that the Constitution is part of the holy
trinity of the American civil religion, along with the Declaration of
Independence and the Flag. Pledging faith in the Constitution, therefore,
presumably defines one as a good American, a full member of our political
community. 446 Strikingly, as late as 1968, Hugo Black, a Supreme Court
Justice who was famous for carrying his pocket copy of the Constitution
everywhere he went, published a book called appropriately enough A
Constitutional Faith. 447 I doubt that in many other countries a public official
as important as an American Supreme Court Justice would so equate fidelity to
a constitutional text with religious devotion.
B.
Id. (quoting FROM THE DIARIES OF FELIX FRANKFURTER, supra note 441, at 212).
See id. at 5.
Id.
Id. (footnote omitted).
HUGO L. BLACK, A CONSTITUTIONAL FAITH (1968).
See LEVINSON, supra note 25, at 12 (alteration in original).
Id.
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Similarly, Kammen observes that in 1829, Supreme Court Justice Joseph Story
said in his inaugural lecture on law at Harvard Law School that it was his goal
to fix in the minds of American youth a more devout enthusiasm for the
constitution of their country. 450 Story followed up this lecture by publishing a
three-volume commentary on the Constitution, a 650-page abridgment for use
as a textbook in high schools and colleges, and later a still more simplified
version for use in common schools. 451 Finally, a fourth rendition was aimed
primarily at a lay audience. 452 Story hoped his Commentaries on the
Constitution would build popular support for and knowledge of the document,
and his writings had a huge effect. 453 Storys project is consistent with an
effort to encourage public reverence for the Constitution of a kind already
enjoyed by the Declaration of Independence.
Public reverence for the Constitution continued during the last half of the
nineteenth century and into the twentieth century. Kammen writes that
[m]any interested observers note that there has been a cult of the
Constitution in the United States, and claims that this cult became especially
intense during the period between 1875 and 1900. 454 The centennial of the
Constitutions writing and ratification became a special occasion for
There was a nationwide
celebrating and reflecting on its virtues. 455
celebration, which Kammen reports solidified a sense that the Constitution was
worthy of public reverence. 456 In 1889, A. Lawrence Lowell, who later
lectured at and served as President of Harvard, observed that
[f]or a long time the Constitution of the United States was the object of
what has been called a fetish worship; that is, it was regarded as
something peculiarly sacred, and received an unquestioned homage for
reasons quite apart from any virtues of its own. The Constitution was to
us what a king has often been to other nations. It was the symbol and
pledge of our national existence, and the only object on which the people
could expend their new-born loyalty. 457
This view was evident in 1916 when the first proposals began to be made to
celebrate September 17 the anniversary of the day the Constitutional
450
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458
459
460
461
462
463
464
465
466
467
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Public reverence for the Constitution was also evident during the great
constitutional crisis of the 1930s, when Thurman Arnold described the outlook
of many Americans as follows:
The Constitution became for them a sort of abracadabra which would
cure all disease. Copies of the Constitution, bound together with the
Declaration of Independence and Lincolns Gettysburg Address, were
distributed in cigar stores; essays on the Constitution were written by
high-school students; incomprehensible speeches on the Constitution
were made from every public platform to reverent audiences which knew
approximately as much about the history and dialectic of that document
as the masses in the Middle Ages knew about the Bible . . . . The
American Liberty League was dedicated to Constitution worship. Like
the Bible, the Constitution became the altar whenever our best people met
together for tearful solemn purposes, regardless of the kind of
organization. Teachers in many states were compelled to swear to
support the Constitution. 468
In 1937, the sesquicentennial of the Constitution was celebrated widely and
publicly, notwithstanding the simultaneous occurrence of Franklin Roosevelts
controversial court-packing plan. 469 [G]roups all along the ideological
spectrum, ranging from the American Legion and the Sons of the American
Revolution to the Workers Defense League, participated in the
Sesquicentennial with genuine enthusiasm . . . . 470 By the 1930s, many
Americans had come to regard proposals for constitutional change as being, as
Thomas Reed Powell of Harvard put it, impious. 471 The very idea of
tampering with the Constitution became a sacrilegious act. In 1935, the
Supreme Courts magnificent temple-like building was completed and opened,
and the Supreme Court finally acquired a permanent home, 472 fitting in
splendor for an institution that is the publicly recognized keeper of the
American ark of the covenant.
Other evidence of the secular religion that surrounds the Constitution
abounds. For example, the Constitution and the Declaration are publicly
displayed in a national shrine under glass where millions go to see the original
sacred texts. Surely, the National Archives is a national, modern day ark for
our national covenant. Moreover, consider the building that the Supreme
Court meets in, which is designed to look like a Greek temple with religious
friezes and the words Equal Justice Under Law emblazoned across the front
of it. Surely, that temple is a national, modern day St. Peters Basilica for the
American secular religion. Is it any accident that when the Supreme Court
468
469
470
471
472
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hands down a ruling (as God handed down the Ten Commandments), all the
television networks display the facade of the Supreme Court building to show
the sacred source of the new decree? And, as Levinson also points out, the
writing of the Constitution in 1787 is popularly described as a [m]iracle at
Philadelphia. 473 Levinson notes that [m]iracle can, of course, have a
secular meaning, but both the dictionary and our ordinary language evidence
its decidedly sacred connotations. 474 Indeed, Framer and signer of the
Declaration of Independence Dr. Benjamin Rush that the Constitution was the
offspring of inspiration, and that he was perfectly satisfied that the Union of
the States, in its form and adoption, is as much the work of a Divine
Providence as any of the miracles recorded in the Old and New Testament
were the effects of a divine power. 475
The secular religion surrounding the Constitution also explains the
propensity of most Americans to believe that they can read and interpret the
written Constitution along with the Justices. Levinson argues that this belief
has its roots in American Protestantism, with its emphasis on the primacy of
the written scripture and its acknowledgment that individual interpretation of
the scripture is legitimate. 476 For Protestants, Levinson says, Sola scriptura
were the great watchwords; an authentic Christianity must be based on the
Scriptures alone. The BIBLE, I say, the BIBLE only, is the religion of
Protestants, said a seventeenth-century reformer, describing The Religion of
Similarly, most American
Protestants: A Safe Way to Salvation. 477
Protestants became constitutional departmentalists. They believed all ordinary
people and all the branches of government could independently interpret the
text of the Constitution without the help of an intermediating priesthood of
Supreme Court Justices. This remains a uniquely American belief, ironically
opposed today by a few constitutional law professors who believe not in the
right answer of the constitutional text, but in the right answerer of the Supreme
Court (standing in for the Pope).
In sum, the American ideology of exceptionalism and the reality of
American exceptionalism find their expression in a belief that the Constitution
is the ark of the covenant of the New Israel. It is quite literally our holiest of
holies, which all of us can read and interpret. Woe to any priesthood of
Supreme Court Justices who would construe the American covenant with God
in light of the laws of Germany or France!
473
See LEVINSON, supra note 25, at 13 (describing the most important exhibit
celebrating the Bicentennial, which was titled Miracle at Philadelphia).
474 Id.
475 See id.
476 See id. at 18-27, 29-52 (examining differences between Protestantism and Roman
Catholicism and applying the distinctions between the two to modes of constitutional
interpretation).
477 Id. at 18.
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1405
I now turn away from the subject of the public history of what Kammen
calls our fetish with the Constitution, to the subject of Supreme Court doctrine
in a few areas of constitutional law. The question here is: how unique and
exceptional is our constitutional law doctrine? Is the Constitution as it is
applied in practice by the Supreme Court reflective of the notion that
Americans are a special people, in a special place, with a special calling?
As one would expect, certain doctrines in American constitutional law
explicitly reflect the extent to which America is an exceptional nation,
different from any other. Frederick Schauer has written about the extent to
which our Constitution is exceptional in its protections of freedom of speech
and of the press. 478 Schauer argues that U.S. First Amendment caselaw is
exceptionally libertarian in its protection of hate speech, 479 in defamation
law, 480 in allowing the press to comment on ongoing criminal prosecutions,481
and with respect to constitutional protection for commercial speech.482
Schauer says that throughout virtually the entire range of freedom of speech
and freedom of the press topics . . . the United States is an outlier. 483 Schauer
shows the cultural and textual roots of this First Amendment exceptionalism
and concludes that American approaches to freedom of expression diverge
dramatically from those accepted in most of the remainder of the open and
democratic world. 484
A second respect in which U.S. constitutional law is exceptional compared
to the constitutional law of other Western democracies is with regard to capital
punishment. As Carol Steiker points out, capital punishment for ordinary
crimes has at this point been abolished, either de jure or de facto, in every
single Western industrialized nation except the United States. 485 Steiker also
notes that the United States has an exceptionally higher homicide rate than do
other Western democracies, 486 and she suggests that American voters are more
intensely procapital punishment than are voters in other Western countries. 487
Steiker reviews a number of different explanations for Americas capital
punishment exceptionalism, and she concludes that the most powerful factor
was the historical accident of Richard Nixons narrow election victory in 1968
478
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over Hubert Humphrey and the contingencies that helped Nixon to prevail,
as well as the four appointments Nixon subsequently made to the Supreme
Court. 488 Steiker concludes that [w]e should thus most emphatically not
assume that we are destined owing to sociological facts about our murder
rate or to political forces that currently predominate, or to anthropological
observations about our culture to continue to embrace capital
punishment. 489
Steiker is clearly right about the constitutional law impact of Nixons
narrow victory over Humphrey in 1968, but I think she is too quick to assume
that the United States is not fundamentally different from other Western
democracies in its attitudes toward capital punishment and law and order. The
fact is that Nixon won in 1968 because his prolaw and order arguments
resonated with American voters, and they did so because Americans are
unusually moralistic, as prior sections of this Article have shown.
A third respect in which American constitutional law differs radically from
the constitutional law of other Western democracies is that it lacks guarantees
of social and economic rights, such as a right to employment, health care, and
vacation time. Cass Sunstein has written on this question and has considered
why American constitutionalism is unique in this regard. 490 Sunstein
concludes that the key is again the accident of Nixons narrow victory over
Humphrey in 1968. 491 He claims that with a modest shift in personnel, the
Constitution would have been understood to create social and economic rights
of the sort recognized in many modern constitutions, and indeed in the
constitutions of some of the American states. 492 As Sunstein recognizes,
however, the counter-argument is that the very election attests to the strength
of the cultural explanation that Nixons election was a product of Americas
distinctive culture, one that is hostile to social and economic rights. 493
Sunstein is right that there are leftists in America who advocate big
government solutions to problems, 494 but America is different in that those
leftists win a lot fewer elections here than they do in other Western countries.
Again, American constitutionalism is exceptional in lacking guarantees of
social and economic rights because American history and culture are far more
hostile to those rights than are the history and culture of any other major
488
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495
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have marked the recent transformation of Western family law, often occupies
an extreme end of the spectrum when cross-national comparisons are made on
specific issues. 498 Glendon elaborates as follows:
When American abortion law is viewed in comparative perspective, it
presents several unique features. Not only do we have less regulation of
abortion in the interest of the fetus than any other Western nation, but we
provide less public support for maternity and child raising. And, to a
greater extent than in any other country, our courts have shut down the
legislative process of bargaining, education, and persuasion on the
abortion issue. Divorce law in the United States is also distinctive in a
number of ways. Divorce is as readily available in most American states
as it is anywhere, but we have been less diligent than most other countries
in seeking to mitigate the economic casualties of divorce through public
assistance or enforcement of private support obligations. 499
Glendon finds the causes of both phenomena in constitutional law. 500 She
denounces the Supreme Courts radically libertarian right of privacy caselaw
and urges a more moderate abortion caselaw than that embodied in Roe v.
Wade. 501 She also argues that the Supreme Court has come close in Boddie v.
Connecticut to sanctioning a constitutional right to divorce, and in Zablocki v.
Redhail to establishing a constitutional right to marry successively as many
spouses as one wishes. 502 Both American abortion and divorce law as
promulgated by the Court are exceptionally libertarian and individualistic a
finding that is obviously of major interest given the themes of this Article.
First, with respect to abortion, Glendon observes that American law is more
pro-abortion than is the law of Austria, Denmark, Greece, Norway, and
Sweden. 503 The United States is alone in this group . . . in forbidding any
state regulation of abortion for the sake of preserving the fetus until
viability . . . . It is alone, too, in that even after viability, it does not require
regulation to protect the fetus. 504 As a result, Glendon says that
[t]oday, in order to find a country where the legal approach to abortion is
as indifferent to unborn life as it is in the United States, we have to look
to countries which are much less comparable to us politically, socially,
498
Id. at 2.
Id.
500 See id. at 134 (emphasizing the U.S. Constitutions unique emphasis on the
expressed rights to individual liberty and equal treatment and its lack of explicit provisions
for family protection).
501 See id. at 42-46.
502 Id. at 78 (citing Boddie v. Connecticut, 401 U.S. 371 (1971); Zablocki v. Redhail, 434
U.S. 374 (1978)).
503 Id. at 22.
504 Id.
499
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Id. at 24.
See id. at 25.
507 See id. at 33-39.
508 Id. at 34.
509 See id.
510 See id. at 35 (Roe . . . embodies a view of society as a collection of separate
autonomous individuals. The West German decision emphasizes the connections among the
woman, developing life, and the larger community. (footnote omitted)).
511 Id. at 37-38.
512 Id. at 38.
513 See id. at 76.
514 See id. at 76-77 (As the number of states where divorce was readily available
increased, it became harder and harder for any given state to maintain a significantly more
restrictive policy than its neighbors.).
515 Id. at 75, 78.
506
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certain that a breadwinner will be obligated to pay child support in the United
States than in Sweden, because there is almost a constitutional right to remarry
in the United States, and because the reformed U.S. divorce came to be known
as no-fault divorce a label which made divorce less socially sanctioned
than in Sweden. 516 Glendon concludes that the United States appears unique
among Western countries in its relative carelessness about assuring either
public or private responsibility for the economic casualties of divorce. 517
Glendon concludes that it is striking that major changes in both divorce and
abortion law during this period took place first in the United States and
England, and that the changes took an extreme form in American law. 518 She
explains that this in part results from the fact that [i]n England and the United
States the view that law is no more or less than a command backed up by
organized coercion has been widely accepted. The idea that law might be
educational, either in purpose or technique, is not popular among us. 519 Part
of the reason, then, that American law is so exceptional is because we have
accepted the teachings of Hobbes, Bentham, Austin, and Holmes in a way that
they are not accepted in civil law Europe. 520
I am sympathetic to some of Glendons complaints about the doctrinal
constitutional law residue of the Warren and Burger Courts, but I do not agree
with her that this is a problem solely of recent origin. American individualism
and libertarianism in constitutional law are plainly reflections of the ways in
which America is exceptional, as is shown in this Article. The phenomenon
Glendon bemoans is much more deeply rooted in American life than she seems
to realize. It is in fact a reflection of the fact that the Constitution is our ark of
the covenant and that ours is an exceptionally libertarian and individualist
society. Glendons book is elegant and powerful, but she seems not to realize
how deep some of the roots of the trends she deplores are.
V.
It is time to bring the very disparate strands of this Article together. The
culture of the Supreme Court is highly sympathetic to reliance on foreign law.
In fact, the Supreme Court has cited and relied on foreign law going back to
the beginning of the nineteenth century in literally dozens and dozens of cases.
The Court has relied on foreign law in a whole host of different areas: in
federalism cases, in economic liberty cases, in substantive criminal law and
criminal procedure cases, in determining the evolving meaning of the Eighth
Amendment, and in controversial social issue substantive due process cases.
In stark contrast, the popular culture of the United States is extremely hostile
to the idea that the meaning of our Constitution should be based in any way on
516
517
518
519
520
Id. at 78-80.
Id. at 105.
Id. at 112.
Id. at 7.
See id. at 114-25.
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foreign law. Many although not all Americans believe that Americans are
a special people, in a special land, with a special mission. This is our national
ideology, and to some degree it also reflects reality. Americans really are
different from Europeans and Canadians, and for that fact many Americans are
very grateful. The Constitution is the focal point of American exceptionalism:
it is our holiest of holies, the ark of the covenant of the New Israel. Indeed,
Americans focus on the sanctity of their Constitution could be criticized as
bordering on idolatry. Supreme Court interpretation of the Constitution in
substantive due process cases with reference to foreign law calls the whole
400-year-old American project into question. The popular culture of America
and the elite culture of the Supreme Court sharply clash over whether foreign
practice as to sodomy laws, for example, is relevant to American law.
This clash between elite and popular culture poses a special challenge for
law professors like Columbias Thomas Merrill or the University of Chicagos
David Strauss, who believe that the Supreme Court ought to be guided by what
Merrill calls Burkean conventionalism 521 and what Strauss calls common law
constitutionalism. 522 Merrill thinks that the Court ought to do what is
conventional; under no circumstances ought it to be an engine of social
change. 523 Merrill thinks that the rule of law is promoted and democracy is
enhanced when the Court follows precedent and does what is conventional. 524
Moreover, Merrill has a fairly short time horizon in defining what precedents
ought to be binding. He believes that Roe v. Wade is now binding precedent,
and he has said that the Supreme Court was wrong in the Apprendi line of
cases that call into question sentencing guidelines that are less than twenty
Strauss also exalts Supreme Court precedent over the
years old. 525
constitutional text. 526 He acknowledges, of course, that sometimes precedents
get overruled, but he calls for this to happen only slowly and in a common law
like way. 527 The gradual erosion of Plessy v. Ferguson and its displacement
by Brown v. Board of Education and Loving v. Virginia are his models for the
slow, incremental way in which constitutional change should occur. 528
I submit that Burkean conventionalism and common law constitutionalism
will often founder as sources of guidance, because on many questions the
convention in the Supreme Courts caselaw and the conventions of popular
521
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529
530
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There is always the risk . . . that persons start with the totally false
assumption that the Constitution is the province of the lawyers. . . .
Moreover, I think it is quite clear that there is a grave danger that if we
think of the Constitution exclusively in terms of constitutional law, we
shall lose some of its most important symbolic, as well as practical,
values to our society. 531
Kammen adds that American constitutional history [must] be regarded and
written as much more than the running record of so-called major cases decided
by the Supreme Court. 532
There is an easy way to amend the Courts caselaw to accomplish
conventionalist goals. The Supreme Court ought to confine its reliance on
foreign law to Eighth Amendment Cruel and Unusual Punishment Clause
cases, as it has so relied since Trop v. Dulles in 1958. 533 These are the only
cases in which the Court has actually struck down American statutes while
relying on foreign law, so these are the only precedents from the many
discussed in Part I that clearly support the invalidation of American statutes
based on foreign law. All the other cases discussed in Part I mention foreign
law as one of many reasons to uphold statutes. I would dismiss the references
in these other cases as dicta and keep Supreme Court reliance on foreign law
confined to the Eighth Amendment area and to any analogous areas of caselaw
where the Court is asked to make a determination of reasonableness. 534 I have
argued as much previously in an article in the Ohio State Law Journal, 535 and
will not repeat that argument here. Even in Eighth Amendment cases, the
Court ought to be far more sensitive to American exceptionalism than it has
been when it decides to strike down federal or state statutes. I do not think, for
example, that the death penalty ought to be generally struck down merely
because it has been abolished in most other economically advanced countries.
Thus, I think Justice OConnor was right to dissent from the Courts opinion
striking down the juvenile death penalty as unconstitutional. 536
The advantage to retaining some reference to foreign law in Cruel and
Unusual Punishment cases is that it might serve to temper the harsher sides of
531
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2006]
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foreign policy disputes and other countries are always wrong. All one needs to
believe to be an American exceptionalist is that, relatively speaking, this land
is a beacon of liberty and hope to oppressed seekers of freedom from all over
the world. Americans do not think we are better than everybody else, which is
why we have never sought to be an empire. We do not want to rule over other
people and tell them what to do. We want democracy, liberty, and respect for
fundamental rights so that other countries can flourish the way America
flourishes. When the United States and its allies won World War II, we did not
subjugate Germany, Japan, and Italy. We turned them into free societies with
democratic institutions. We did the same thing with the countries of Eastern
and Central Europe after the communist regimes there fell.
American exceptionalism is thus absolutely exceptional among all the
exceptionalisms of the world because of the belief that anyone of any race or
nation can become an American just by believing in a set of ideas. Ours is a
universal creed, and it is not predicated on the nationalist belief that we are
superior because of who we are. Americans think America is superior because
of what Americans believe. For this reason, Ronald Reagan was absolutely
right to describe us as a beacon of freedom for the whole world. America has
in fact created the freest, most socially egalitarian, and most racially integrated
society in the world. Our people are exceptionally religious, hard-working,
patriotic, and devoted to philanthropy. In short America is a good country that
is committed to good values in a way that Ancient Greece, Rome, the British
Empire, and Nazi Germany were not. To demean American exceptionalism by
equating it with the belief systems of these other hateful regimes is just plain
wrong. America is as plainly a good society as Nazi Germany was a bad
society. While the United States has committed sins in our treatment of
African Americans and Native Americans, we have worked very hard for a
long time to rectify those sins. We are indeed, in the words of Abraham
Lincoln and Ronald Reagan, the last best hope of man on earth. 537
A second objection that could be raised to American exceptionalism is that
there is more than a little of the deadly sin of pride involved in proclaiming
ones people to be Gods elect, as Roger Williams pointed out. 538 Ironically,
the Puritans themselves were guilty of the sin of pride because they thought the
churches they had founded in the New World were purer than the Church of
England or the Catholic Church. It is only a short step from devotion, to pride
in ones devotion, to moralism against those who one thinks are less devout
than oneself. From the Salem witch hunts up through the hysteria of the forces
of political correctness on university campuses, many Americans have taken
the step from believing we are a special people to the sin of self-righteous
pride.
The first response to this objection is to remember Christs admonition that
we should not judge lest we be judged, and that we should not try to remove
537
538
Reagan Remarks, supra note 240; see also supra note 196 and accompanying text.
See MORGAN, supra note 79, at 103.
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the mote from the eye of our neighbor before removing the beam from our own
eyes. 539 It is admirable, in my view, to aspire to a life of religious devotion,
but not if ones own devotion manifests itself in a desire to punish other people
who one thinks are less devout. Christ says it is the meek and the forgiving
who shall inherit the earth and not the self-righteous, 540 a point American
exceptionalists and moralists need to remember.
Second, and more fundamentally, the idea that America is a special place,
with a special people, and a special role to play in the world does not have to
lead to the deadly sin of pride. One can think, as I do, that God calls
individuals and sometimes nations to play a special role without becoming
arrogant in the process. We all have callings both individually and as a group
of people, but that does not mean we should be arrogant or dismissive of those
with different callings. Fundamentally, I think the United States is not an
arrogant or proud nation in the wrongful sense of the term pride. We have not
sought to create an empire or to exalt our nationality over all the other
nationalities of the world. We seek only to spread democracy and individual
rights around the world. Where is the pride in doing that?
All of that being said, I would like to close with some strong words in
defense of American moralism and exceptionalism. It is the United States of
America, and its allies, that had the moral compass required to undertake the
mission of defeating the Nazi and Communist totalitarian regimes during the
last seventy years, and it is the United States that introduced the world to
democracy and spread that system of government all over the world as its
national mission. This moralism, when many Europeans were openly and
covertly collaborating with and appeasing evil, was vital to successfully
stopping the onslaught of a new dark age. And so I conclude, as Deborah
Madsen does, by observing that a nation which learned the idea of American
exceptionalism from Europeans ultimately gave freedom back to Europe as
part of its special mission in the world. 541 After four hundred years, American
exceptionalism appears to have circled back on itself to rejuvenate the tired old
lands of Europe and win them back again and again for the cause of freedom.
539